Case No. 12-17668: Plaintiffs-Appellants

Case No.
12-17668

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BEVERLY SEVCIK, et al.,
Plaintiffs-Appellants,
v.
GOVERNOR BRIAN SANDOVAL, et al.,
Defendants-Appellees,
and
COALITION FOR THE PROTECTION OF MARRIAGE,
Intervenor-Defendant-Appellee.

On Appeal from the United States District Court
For the District of Nevada
Case No. 2:12-CV-00578-RCJ-PAL
The Honorable Robert C. Jones, District Judge

MOTION FOR LEAVE TO EXCEED TYPE-VOLUME
LIMITATION OF APPELLEE COALITION
FOR THE PROTECTION OF MARRIAGE

Monte Neil Stewart
Craig G. Taylor
Daniel W. Bower
STEWART TAYLOR & MORRIS PLLC
12550 W. Explorer Drive, Suite 100
Boise, ID 83713
Tel: (208) 345-3333

Lawyers for Appellee Coalition for the Protection of Marriage
Case: 12-17668 01/21/2014 ID: 8945342 DktEntry: 110-1 Page: 1 of 3 (1 of 922)
Pursuant to Ninth Circuit Rule 32-2, Defendant-Appellee Coalition for the
Protection of Marriage (hereinafter Coalition) respectfully requests leave to file
an answering brief in excess of the applicable type-volume limitation. See Fed. R.
App. P. 32(a)(7)(B). In order to adequately respond to Appellants 25,529-word
opening brief, the Coalition requests leave to file an answering brief of no more
than 25,200 words. Leave to exceed the type-volume limitation is warranted given
the manifest importance of the issues raised by this appeal and the necessity for the
Coalition to respond to Appellants over-length brief. The Coalitions request is
supported by the Declaration of Monte Neil Stewart filed herewith.
Dated: January 21, 2014 Respectfully submitted,

Monte Neil Stewart
Craig G. Taylor
Daniel W. Bower
Boise, ID 83713
Tel: (208) 345-3333

By: s/ Monte Neil Stewart
Monte Neil Stewart

Lawyers for Appellee Coalition for the
Protection of Marriage

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on January 21, 2014.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.

s/ Monte Neil Stewart
Case No. 12-17668


v.
and


DECLARATION OF MONTE NEIL STEWART

Monte Neil Stewart
Craig G. Taylor
Daniel W. Bower
Boise, ID 83713
Tel: (208) 345-3333

I, Monte Neil Stewart, declare as follows:
1. I am a member of the law firm Stewart Taylor & Morris PLLC,
counsel for Defendant-Appellee Coalition for the Protection of Marriage (the
Coalition). I make this declaration in support of the Coalitions Motion for
Leave to Exceed Type-Volume Limitation for its answering brief. I have personal
knowledge of the facts set forth herein.
2. In order to respond to Appellants 25,529-word opening brief, the
Coalition requests leave to file an answering brief of no more than 25,200 words.
3. Leave to exceed the type-volume limitation is warranted given the
manifest importance of the issues raised in this appeal and the necessity for the
Coalition to adequately respond to Appellants over-length opening brief, which, in
addition to addressing the complex constitutional questions considered by the
district court, addresses also a substantive due process claim not raised below.
4. Consideration of the issues presented in this appeal will require a
careful and thorough analysis of the legal impact of the United States Supreme
Courts recent opinion in United States v. Windsor, 133 S. Ct. 2675 (2013), on the
issues presented in this appeal. Windsor was entered after the district court ruled
and has yet to be carefully analyzed by any United States Court of Appeals.
5. In Perry v. Brown, No. 10-16696, an appeal that involved issues
similar to those presented here, this Court granted leave to the appellees to file an
over-length answering brief of no more than 27,000 words. Perry v. Brown, No.
10-16696, Dkt. 145-2, 173.
6. No other party opposes the Coalitions request. Counsel for
Plaintiffs-Appellants indicated that they would not object to the Coalitions request
for leave to exceed the type-volume limitation, so long as the Coalition did not
request to file a brief longer than 26,500 words. See Dkt. 20-1 at 5, 20-2 at 5.
7. Based on the reasons set forth herein, the Coalition respectfully
requests leave to file an answering brief of no more than 25,200 words.
I declare, under penalty of perjury under the laws of the United States, that
these facts are true and correct and that this Declaration is executed this 21st day of
January 2014 in Boise, Idaho.

Monte Neil Stewart




Case No. 12-17668


v.
and


ANSWERING BRIEF OF DEFENDANT-APPELLEE
COALITION FOR THE PROTECTION OF MARRIAGE

Monte Neil Stewart
Craig G. Taylor
Daniel W. Bower
Boise, ID 83713
Tel: (208) 345-3333

ii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1, Federal Rules of Appellate Procedure, Defendant-
Appellee Coalition for the Protection of Marriage states that it is a Nevada non-
profit corporation in good standing and that it has no shareholders.
iii

TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ........................................................ ii
TABLE OF AUTHORITIES ........................................................................... vi-xviii
INTRODUCTION .................................................................................................... 1
STATEMENT OF JURISDICTION....................................................................... 10
STATEMENT OF THE ISSUES............................................................................ 10
ADDENDUM OF PERTINENT AUTHORITIES ................................................. 11
STATEMENT OF THE CASE ............................................................................... 11
SUMMARY OF THE ARGUMENT ..................................................................... 16
ARGUMENT .......................................................................................................... 17
I. RELEVANT AND ROBUST LEGISLATIVE FACTS SHOW THAT
SOCIETY HAS GOOD REASONS TO PRESERVE THE UNION OF A MAN
AND A WOMAN AS A CORE MEANING OF THE MARRIAGE
INSTITUTION ................................................................................................... 17

A. When parties present competing legislative facts, the
courts defer to those chosen by the government decision-
maker. ................................................................................................. 18

B. The union of a man and a woman meaning at the
core of Nevadas marriage institution provides valuable
social benefits ..................................................................................... 26

Case: 12-17668 01/21/2014 ID: 8945342 DktEntry: 110-3 Page: 3 of 143(10 of 922)
iv

1. The man-woman marriage institution maximizes the likelihood that
children will have both mother and father in their lives, an arrangement
that, on a wide range of indicators of human flourishing, has been shown to
generate the best life-long outcomes....................................................................... 34

a. The man-woman meaning in marriage furthers Nevadas vital
interest in maximizing the number of children who are raised by their
own two biological parents ........................................................................... 35

b. The man-woman meaning in marriage furthers Nevadas vital
interest in maximizing the number of children raised by parents who
can at least give them the benefits of gender complementarity .................... 42

c. The man-woman meaning in marriage minimizes fatherlessness in
the lives of children, a condition particularly challenging to childrens
well-being generally. .................................................................................... 46

2. Man-woman marriage protects religious liberties ............................................ 51

C. Plaintiffs constricted view of what marriage is does not
negate the legislative facts showing the institution to be much
broader and deeper in its nature and purposes. .................................. 56

II. WHAT MARRIAGE OUGHT TO BE IS A DECISION THAT MUST BE
LEFT TO DEMOCRATIC PROCESSES, ESPECIALLY WHEN THOSE
PROCESSES ARE OPERATING IN A FAIR AND OPEN WAY AND WHERE
GENDERLESS MARRIAGE PROPONENTS ARE EFFECTIVELY
DEPLOYING VERY CONSIDERABLE POLITICAL POWER. .................................... 61

III. NEVADANS HAVE RIGHTLY VALUED THE INTERESTS
SUSTAINING NEVADAS MARRIAGE LAWS ..................................................... 64

IV. BAKER V. NELSON BINDS THIS COURT TO RULE AGAINST THE
PLAINTIFFS. ................................................................................................... 67

V. WINDSOR SUPPORTS NEVADAS MARRIAGE LAWS ................................... 68

v

A. Windsor reviewed a law materially different in
motivation, authority, operation, and consequences from
Nevadas Marriage Laws. .................................................................. 68

B. Plaintiffs wrongly ask this Court to make the same
mistake that Congress made with DOMA and that
Windsor corrected............................................................................... 72

C. The Plaintiffs wrongly equate DOMAs
discrimination found unconstitutional in Windsor with
Nevadas profoundly different decision to preserve the
man-woman marriage institution ....................................................... 74

D. The Plaintiffs wrongly read Windsor as recognizing a
free-standing substantive due process right to equal
dignity that requires judicial imposition of a genderless
marriage regime .................................................................................. 77

E. Plaintiffs wrongly read Windsor as basing a right to
genderless marriage on harm to same-sex couples and
the children connected to their relationships ...................................... 79

VI. THERE IS NO FUNDAMENTAL RIGHT TO A GENDERLESS
MARRIAGE REGIME ......................................................................................... 86

VII. THERE IS NO LEGAL OR FACTUAL BASIS FOR DEPLOYING
HEIGHTENED SCRUTINY IN THIS CASE ......................................................... 93

VIII. NEVADAS MARRIAGE LAWS DO NOT CONSTITUTE SEX
DISCRIMINATION ............................................................................................ 97

IX. NEVADAS MARRIAGE LAWS ARE NOT THE RESULT OF
ANIMUS AND A BARE DESIRE TO HARM ........................................................... 99

X. NEVADAS DPA REINFORCES RATHER THAN UNDERMINES THE
CONSTITUTIONALITY OF NEVADAS MARRIAGE LAWS ................................ 101

CONCLUSION ..................................................................................................... 103
vi

TABLE OF AUTHORITIES
United States Supreme Court Cases
Baker v. Nelson,
409 U.S. 810 (1972) ................................................................................. 15, 16, 67
Bd. of Regents v. Roth,
408 U.S. 564 (1972) ..............................................................................................81
Dandridge v. Williams,
397 U.S. 471 (1970) ....................................................................... 8, 19, 80, 81, 84
Dred Scott v. Sanford,
60 U.S. (19 How.) 393 (1857) ..............................................................................66
FCC v. Beach Commc'ns, Inc.,
508 U.S. 307 (1993) ....................................................................................... 22, 23
FCC v. Nat'l Citizens Comm. for Broadcasting,
436 U.S. 775 (1978) ..............................................................................................21
Frontiero v. Richardson,
411 U.S. 677 (1973) ..............................................................................................96
Grutter v. Bollinger,
539 U.S. 306 (2003) ................................................................................. 24, 25, 44
Heller v. Doe,
509 U.S. 312 (1993) ....................................................................................... 22, 23
Hicks v. Miranda,
422 U.S. 332 (1975) ..............................................................................................68
Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) ..........................................................................................15
Kadrmas v. Dickinson Pub. Schs.,
487 U.S. 450 (1988) ..............................................................................................23
vii

Lawrence v. Texas,
539 U.S. 558 (2003) ..............................................................................................90
Lochner v. New York,
198 U.S. 45 (1905) ................................................................................................66
Loving v. Virginia,
388 U.S. 1 (1967) ..............................................................................................6, 90
Massachusetts Bd. of Ret. v. Murgia,
427 U.S. 307 (1976) ................................................................................................ 8
McConnell v. FEC,
540 U.S. 93 (2003) ................................................................................................15
Otis v. Parker,
187 U.S. 606 (1903) ..............................................................................................46
Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992) ..............................................................................................90
Romer v. Evans,
517 U.S. 620 (1996) ..............................................................................................16
San Antonio Indep. Sch. Dist. v. Rodgriguez,
411 U.S. 1 (1973) .................................................................................................... 8
Shelby Cnty., Alabama v. Holder,
133 S. Ct. 2612 (2013) ..........................................................................................73
Sosna v. Iowa,
419 U.S. 393 (1975) ..............................................................................................75
Tully v. Griffin, Inc.,
429 U.S. 68 (1976) ................................................................................................68
Turner Broadcasting Sys., Inc. v. FCC,
512 U.S. 622 (1994) ..............................................................................................21
viii

Turner v. Safley,
482 U.S. 78 (1987) ................................................................................................90
Vance v. Bradley,
440 U.S. 93 (1979) ......................................................................................... 22, 24
United States v. Virginia,
518 U.S. 515 (1996) ................................................................................. 18, 44, 46
United States v. Windsor,
133 S. Ct. 2675 (2013) .................................................................................. passim
Washington v. Glucksberg,
521 U.S. 702 (1997) ...................................................................................... passim
Williams v. North Carolina,
317 U.S. 287 (1942) ....................................................................................... 26, 71
Zablocki v. Redhail,
434 U.S. 374 (1978) ...................................................................................... 86, 90

United States Court of Appeals Cases
Am. Civil Liberties Union of Nevada v. Lomax,
471 F.3d 1010 (9th Cir. 2006) ..............................................................................12
Compassion in Dying v. Washington,
79 F.3d 790 (9th Cir. 1996) ........................................................................... 20, 66
Dunigan v. City of Oxford, Mississippi,
718 F.2d 738 (5th Cir. 1983) ................................................................................19
High Tech Gays v. Def. Indus. Sec. Clearance Office,
895 F.2d 563 (9th Cir. 1990) ......................................................................... 18, 95
Marshall v. Sawyer,
365 F.2d 105 (9th Cir. 1966) ................................................................................18
ix

Massachusetts v. U.S. Dep't of Health & Human Servs.,
682 F.3d 1 (1st Cir. 2012) .....................................................................................67
United States v. California Mobile Home Park Mgmt. Co.,
107 F.3d 1374 (9th Cir. 1997) ..............................................................................15
United States v. Juvenile Male,
670 F.3d 999 (9th Cir. 2012) ........................................................................ passim

United States District Court Cases
In re Kandu,
315 B.R. 123 (W.D. Wash. 2004) .........................................................................97
Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012) .......................................................... passim
Libertarian Nat'l Comm., Inc. v. FEC,
930 F. Supp. 2d 154 (D.D.C. 2013) ......................................................................18
Smelt v. Orange,
374 F. Supp. 2d 861 (C.D. Cal. 2005) ..................................................................97
Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) ......................................................... 86, 97

State Cases
Andersen v. King Cnty.,
138 P.3d 963 (Wash. 2006) ........................................................................... 87, 97
Ass'n of Nat'l Advertisers, Inc. v. FTC,
627 F.2d 1151 (D.C. Cir. 1979) ............................................................................19
Baehr v. Lewin,
852 P.2d 44 (Haw. 1993) ......................................................................................86
x

Baker v. Vermont,
744 A.2d 864 (Vt. 1999) .......................................................................................97
Conaway v. Deane,
932 A.2d 571 (Md. 2007) .............................................................................. 86, 97
Dean v. District of Columbia,
653 A.2d 307 (D.C. 1995) ....................................................................................86
Goodridge v. Dep't of Pub. Health,
798 N.E.2d 941 (Mass. 2003) ............................................................ 26, 41, 56, 61
Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) .............................................................................. 87, 97
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) ......................................................................................97
King v. Bd. of Regents of Univ. of Nevada,
200 P.2d 221 (Nev. 1948) ...................................................................................103
Lewis v. Harris,
908 A.2d 196 (N.J. 2006) .....................................................................................86
Morrison v. Sadler,
821 N.E.2d 15 (Ind. Ct. App. 2005) .....................................................................86
Singer v. Hara, 522 P.2d 1187 (Wash. App. 1974) .................................................97
Standhardt v. Super. Ct.,
77 P.3d 451 (Ariz. Ct. App. 2003) ........................................................................86
Van Sickle v. Haines,
7 Nev. 249 (1872) .................................................................................................11
Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009) ...............................................................................41

xi

Foreign Cases
Hyde v. Hyde, (1866) 1 L.R.P. & D. 130 .................................................................11

Statutes
1 U.S.C. 7 ..............................................................................................................69
28 U.S.C. 1983 ......................................................................................................13
Defense of Marriage Act, Pub. L. No. 104-199, 3, 110 Stat. 2419
(1996) ..................................................................................................................... 69
Laws of Territory of Nevada, Part 2:33: 1861 ......................................................... 11
Nev. Stat. 88 (1876) ..............................................................................................11
Nev. Rev. Stat. 122.020 ................................................................................. 11, 53
Nev. Rev. Stat. 122A.040 ...................................................................................13
Nev. Rev. Stat. 122A.100(1)(a)(1)........................................................................13
Nev. Rev. Stat. 122A.200(1)(a) ............................................................................13
Nev. Rev. Stat. 122A.510 ............................................................................ 13, 102

Constitutional Authorities
Nev. Const. art. I, 21 ...................................................................................... 11, 12
Nev. Const. art. XIX, 2(1) .....................................................................................12
Nev. Const. art. XIX, 2(4) .................................................................................... 12

xii

Rules
Ninth Circuit Rule 28-2.7 ........................................................................................11

Other Authorities
3 W. Cole Durham & Robert Smith, Religious Organizations and the Law
14:20 to 14:30 (2013) .................................................................................... 51, 52
Adam J. MacLeod, No Interest in Fathers, Public Discourse, Jan. 14, 2014,
http://www.thepublicdiscourse.com/2014 /01/11034/ ..........................................48
Alan Duke, Hawaii to become 16th state to legalize same-sex marriage,
CNN.com, Nov. 13, 2013, http://www.cnn.com/2013/11/12/us/hawaii-same-sex-
marriage/ ...............................................................................................................63
Alan Wolfe, The Malleable Estate: Is marriage more joyful than ever?, Slate,
May 17, 2005, http://www.slate.com/ id/2118816 ...............................................58
Andrew Sullivan, Recognition of Same-Sex Marriage, 16 Quinnipiac L. Rev. 13
(1996) ....................................................................................................................31
Angela Bolt, Do Wedding Dresses Come in Lavender? The Prospects and
Implications of Same-Sex Marriage, 24 Soc. Theory & Prac. 111 (1998) ...........31
Brenda Hunter, The Power of Mother Love: Transforming Both Mother and Child
(1997) ....................................................................................................................43
Brian Bix, Reflections on the Nature of Marriage, in Revitalizing the Institution of
Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage
112 (Alan Hawkins et al. eds., 2002) ............................................................. 92, 93
Bruce J. Ellis et al., Does Father Absence Place Daughters at Special Risk for
Early Sexual Activity and Teenage Pregnancy?, 74 Child Dev. 801 (2003) .......47
Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L.
Rev. 4 (1996) ................................................................................................. 29, 46
xiii

Chai R. Feldblum, Moral Conflict and Conflicting Liberties, in Same-Sex Marriage
and Religious Liberty: Emerging Conflicts 123 (Douglas Laycock et al. eds.,
2008) .............................................................................................................. 51, 52
Daniel Cere, War of the Ring, in Divorcing Marriage: Unveiling the Dangers
in Canada's New Social Experiment 9 (Daniel Cere & Douglas Farrow eds.,
2004) .....................................................................................................................31
David Blankenhorn, Fatherless America (1995) .............................................. 43, 47
David Blankenhorn, The Future of Marriage (2007) ........................... 30, 38, 58, 90
David Popenoe, Life Without Father: Compelling New Evidence that
Fatherhood & Marriage are Indispensable for the Good of Children and
Society (1996) ................................................................................................ 43, 47
Deborah A. Widiss, Changing the Marriage Equation, 89 Wash. U.L. Rev.
721 (2012) .............................................................................................................31
Devon W. Carbado, Straight Out of the Closet, 15 Berkeley Women's L.J. 76
(2000) ....................................................................................................................31
Douglas Farrow, Canada's Romantic Mistake, in Divorcing Marriage:
Unveiling the Dangers in Canada's New Social Experiment 1 (Daniel Cere &
Douglas Farrow eds., 2004) ..................................................................................31
Douglas W. Allen, High school graduation rates among children of same-sex
households, 11 Review of Economics of the Household 635 (2013) ..................40
Eerik Lagerspetz, On the Existence of Institutions, in On the Nature of Social
and Institutional Reality 70 (Eerik Lagerspetz et al. eds., 2001) .........................27
Eerik Lagerspetz, The Opposite Mirrors: An Essay on the Conventionalist
Theory of Institutions (1995) ................................................................................27
E.J. Graff, Retying the Knot, The Nation, June 24, 1996, at 12 ..............................31
Elrini Flouri & Ann Buchanan, The role of father involvement in childrens later
mental health, 26 J. Adolescence 63 (2003) .........................................................47
xiv

Gary J. Gates, LGBT Parenting in the United States, The Williams Institute,
UCLA School of Law (Feb. 2013), http://williamsinstitute.law.ucla.edu/wp-
content/uploads/LGBT-Parenting.pdf ..................................................................50
Gregory Ace et. al., The Moynihan Report Revisited, 6 Urban Institute 1 (2013),
available at http://www.urban.org/UploadedPDF/412839-The-Moynihan-
Report-Revisited.pdf .............................................................................................47
Helen Reece, Divorcing Responsibly (2003) ...........................................................27
House hearing on same sex marriage resumes Saturday, khon2.com, Nov. 1, 2013,
http://www.khon2.com/news/house-hearing-on-same-sex-marriage-resumes-
Saturday ................................................................................................................53
John Locke, Second Treatise of Government (Richard H. Cox ed., 1982)
(1690) ....................................................................................................................29
John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765
(1997) ....................................................................................................................65
John Rawls, Political Liberalism (1995) .................................................................65
John R. Searle, Making the Social World: The Structure of Human
Civilization (2010) ......................................................................................... 27, 29
John R. Searle, The Construction of Social Reality (1995) .............................. 26, 27
Joseph Raz, The Morality of Freedom (1986) .................................................. 29, 31
Jonathan Culler, Literary Theory: A Very Short Introduction (1997) ....................45
Jonathan Vespa et. al., Americas Families and Living Arrangements: 2012, U.S.
Census Bureau, U.S. Dept. of Commerce (Aug. 2013),
http://www.census.gov/prod/ 2013pubs/ p20-570.pdf .........................................50
Judith Stacey, In the Name of the Family: Rethinking Family Values in the
Postmodern Age (1996) ........................................................................................31
Kate Millet, Sexual Politics (1977) ..........................................................................45
xv

Katharine K. Baker, Bionormativity and the Construction of Parenthood, 42 Ga. L.
Rev. 649 (2008) ....................................................................................................36
Katherine K. Young & Paul Nathanson, The Future of an Experiment, in
Divorcing Marriage: Unveiling the Dangers in Canada's New Social
Experiment 48 (Daniel Cere & Douglas Farrow eds., 2004) ...............................31
Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747 (2011) ............95
Ladelle McWhorter, Bodies and Pleasures: Foucault and the Politics of Sexual
Normalization (1999) ............................................................................................31
Leonard Sax, Why Gender Matters: What Parents and Teachers Need to Know
About the Emerging Science of Sex Differences (2005) .......................................43
Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and
Responsibility (2006) ............................................................................................56
Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage as a
Social Institution: A Reply to Andrew Koppelman, 2 U. St. Thomas L.J.
33 (2004) ...........................................................................................................9, 31
Malia Zimmerman, Experts say Hawaiis gay marriage bill worst at protecting
religious freedom, Hawaii Reporter, Oct. 30, 2013,
http://www.hawaiireporter.com/experts-say-hawaiis-gay-marriage-bill-worst-at-
protecting-religious-freedom/123 .........................................................................63
Mark D. Regnerus, Parental Same-Sex Relationships, Family Instability, and
Subsequent Life Outcomes for Adult Children: Answering Critics of the New
Family Structures Study with Additional Analysis, 41 Soc. Sci. Research 1367
(2012) ............................................................................................................. 40, 43
Marc D. Stern, Same-Sex Marriage and the Churches, in Same-Sex Marriage
and Religious Liberty: Emerging Conflicts 1 (Douglas Laycock et al. eds.,
2008) .....................................................................................................................51
xvi

Matthew B. O'Brien, Why Liberal Neutrality Prohibits Same-Sex Marriage:
Rawls, Political Liberalism, and the Family, 1 Brit. J. Am. Legal Stud. 411
(2012) ........................................................................................... 29, 30, 35, 37, 40
Monique Garcia, Signed and sealed: Illinois 16th state to legalize gay marriage,
Chicago Tribune, Nov. 21, 2013, http://www.chicagotribune.com/news/ chi-
illinois-gay-marriage-bill-signing-20131120,0,4464600.story ............................63
Monte Neil Stewart, Eliding in Washington and California, 42 Gonzaga
L. Rev. 501 (2007) ................................................................................... 27, 62, 64
Monte Neil Stewart, Genderless Marriage, Institutional Realities, and
Judicial Elision, 1 Duke J. Const. L. & Pub. Pol'y 1 (2006) ................................26
Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can. J. Fam.
L. 11 (2004) ................................................................................. 27, 40, 46, 79, 93
Monte Neil Stewart, Marriage Facts, 31 Harv. J.L. & Pub. Pol'y 313
(2008) ................................................................................................... 9, 30, 57, 58
Monte Neil Stewart, Marriage, Fundamental Premises, and the California,
Connecticut, and Iowa Supreme Courts, 2012 BYU L.
Rev. 193 ............................................................................................ 32, 37, 54, 58
Monte Neil Stewart & William C. Duncan, Marriage and the Betrayal of Perez and
Loving, 2005 BYU L. Rev. 555 ...........................................................................90
Nan D. Hunter, Marriage, Law, and Gender: A Feminist Inquiry, 1 Law &
Sexuality 9 ............................................................................................................31
Nancy F. Cott, The Power of Government in Marriage, 11 The Good Soc'y 88
(2002) ....................................................................................................................29
Peter A. Hall & Rosemary C.R. Taylor, Political Science and the Three New
Institutionalisms, 44 Pol. Stud. 936 (1996) ..........................................................32
Press Release, Office of the Press Secretary, The White House, President Obama
Launches National Conversation on Importance of Fatherhood and Personal
Responsibility (June 19, 2009), http://www.whitehouse.gov/the-press-
xvii

office/president-obama-launches-national-conversation-importance-fatherhood-
and-personal-r .......................................................................................................47
Press Release, Retail Association of Nevada, RAN Poll Shows Nevadans
Optimistic about States Economy, but Recovery Not Felt by Most Households
(Oct. 2013), http://www.rannv.org/documents/23/Poll Release-
RANOct2013Final.pdf ..........................................................................................63
Richard E. Redding, Politicized Science, 50 Soc'y 439 (2013) ...............................41
Richard R. Clayton, The Family, Marriage, and Social Change
(2d ed. 1979) .........................................................................................................27
Richard W. Garnett, Taking Pierce Seriously: The Family, Religious
Education, and Harm to Children, 76 Notre Dame L. Rev. 109 (2000) ..............29
Ruth Bader Ginsburg, Ratification of the Equal Rights Amendment: A Question of
Time, 57 Tex. L. Rev. 919 (1979) .........................................................................99
Ryan T. Anderson, Clashing Claims, National Review Online, Aug. 23, 2013,
http://www.nationalreview.com/ article/356539/clashing-claims-ryan-t-
anderson#! ...................................................................................................... 52, 53
Scott Yenor, Family Politics: The Idea of Marriage in Modern Political Thought
(2011) ....................................................................................................................57
Sean Whaley, Nevada Legislature advances gay marriage resolution, Las Vegas
Review Journal, May 23, 2013, http://www.reviewjournal.com/news/nevada-
legislature/nevada-legislature-advances-gay-marriage-resolution .......................63
Sherif Girgis et al., What Is Marriage? Man and Woman: A Defense
(2012) ................................................................................................. 31, 51, 56, 90
Shulamith Firestone, The Dialectic of Sex: The Case for Feminist Revolution
(1970) ....................................................................................................................45
Stephanie Coontz, Marriage, A History: From Obedience to Intimacy, or How
Love Conquered Marriage (2005) ........................................................................58
xviii

The Feminists: A Political Organization to Annihilate Sex Roles, in Radical
Feminism 368 (Anne Koedt et al. eds., 1973) ......................................................45
The New Institutionalism in Organizational Analysis, (Walter W. Powell & Paul J.
DiMaggio eds., 1991).............................................................................................. 32
Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, Out/Look
Nat'l Gay & Lesbian Q., Fall 1989, at 19 .............................................................30
Thomas M. Messner, The Heritage Foundation, Same-Sex Marriage and the Threat
to Religious Liberty (2008),
http://www.heritage.org/research/reports/2008/10/same-sex-marriage-and-the-
threat-to-religious-liberty ............................................................................... 52, 53
Victor Nee, Sources of the New Instiutionalism, in The New Institutionalism
Sociology 1 (Mary C. Brinton & Victor Nee eds., 2001) .....................................32
Victor Nee & Paul Ingram, Embeddedness and Beyond: Institutions,
Exchange, and Social Structure, in The New Institutional in Sociology
19 (Mary C. Brinton & Victor Nee eds., 1998) ....................................................26
Wendy D. Manning & Kathleen A. Lamb, Adolescent Well-Being in Cohabiting,
Married, and Single-Parent Families, 65 J. Marriage and Fam. 876 (2003) ......... 47

1

INTRODUCTION

For twenty years now, this Nation has been engaged in a discussion over the
public meaning and social purposes of marriage. The issue is whether marriage
will continue as the union of a man and a woman and therefore as an institution
directed to certain great social tasks, with many of those involving a man and a
woman united in the begetting, rearing, and educating of children. Or whether
marriage will be torn away from its ancient social purposes and transformed into a
government-endorsed celebration of the private desires of two adults (regardless of
gender) to unite their lives sexually, emotionally, and socially for as long as those
personal desires last. As is right among a self-governing people, the most
important part of that discussion has happened in campaigns leading to elections
determining the issue.
In elections on the marriage issue in Nevada and many other States, the
common and collective wisdom came down in favor of preserving and
perpetuating man-woman marriage. The majority of an informed and thoughtful
electorate had powerful and worthy reasons for its vote. That majority sensed that
a childs formative years are benefitted by the presence of both a mother and a
father. They understood that the man-woman marriage institution vindicates the
childs interest in knowing and being raised by her own natural mother and father.
2

They perceived that, among all child-rearing modes, the married mother-father
mode had the outcomes best for children and for society. They understood that,
with fatherlessness clearly leading to social ills, the man-woman marriage
institution plays an important role in teaching and promoting fatherhood.
At the same time, that majority of voters sensed that a genderless marriage
regime will officially repudiate the childs interest in knowing and being raised by
her own natural mother and father, will work against the ideal of each child
benefitting from the presence of both a mother and a father, will disparage the
intact, biological, married family as the gold standard for life in the United States,
will also disparage the need for fathers in the home, and, as troubling as any dark
cloud on the horizon, will be inimical to the religious liberties of broad swaths of
our Nations peoples of faith and their churches, with all those who oppose
genderless marriage for conscience sake being driven from the public square and to
the very margins of culture.
Thwarted in the free, open, democratic processfor the time being
genderless marriage proponents ran to the courts with the claim that the majority
was depriving them for no good reason of a constitutional rightthe right to
change marriages meaning from the union of a man and a woman to the union of
two persons without regard to gender. After all, these adults cannot have their
3

desires fulfilled unless and until the law makes just that change; they cannot be
legally married until the law redefines marriage; and they cannot be socially and
culturally married until the laws vast power effectively suppresses the competing
man-woman meaning.
This great constitution-altering project, supported by many of the Nations
elites, has been built onbecause it had to be, there being no alternativea
number of falsehoods. The most essential and fundamental falsehood in the
proponents narrative is that marriage is nothing more than a close personal
relationship between two adults designedas an act of free choiceto satisfy their
personal emotional, psychological, and sexual purposes, with marriages social
goods being security for adults (and any children who may happen to be connected
to the relationship), economic protection, and public affirmation of commitment.
This description of marriage is true as far as it goes; the material falsehood resides
in the notion of nothing more than. Marriage is, as a matter of fact, much more
than what genderless marriage proponents can allow. It is a vital social institution
with broad additional public purposes and social benefitspurposes and goods
sensed, understood and perceived by the large majority of Nevadas voters and
noted above. In those additional public purposes and social benefits are found the
valuable and compelling societal (and hence governmental) interests that sustain
4

man-woman marriage against every constitutional attack regardless of the level of
judicial scrutiny deployed.
Another essential falsehood in the proponents story is that, as a group, gay
men and lesbians are so politically powerless that the courts must come to their
rescue against an unfeeling, or even malevolent, majority. The obvious falsity of
this assertion should make it embarrassing. Hawaiis marriage case, Jackson v.
Abercrombie, 12-16995which was earlier combined with this case in the Ninth
Circuit for briefing and oral argumentwas effectively mooted just recently by a
show of massive political power when, in the face of strong opposition by man-
woman marriage proponents, the Hawaii legislature voted to redefine marriage as
the union of two persons without regard to gender. In 2009 in Nevada, over two-
thirds of both houses of the State legislature overrode the then-Governors veto and
enacted a complete domestic partnership act. Then, in the spring of 2013, the
Nevada legislature passed for the first of two required times a joint resolution to
repeal the 2002 amendment to the State constitution defining marriage as the union
of a man and a woman. Moreover, genderless marriage proponents are
proclaiming that, based on legislative nose-counting and public opinion polls, the
legislature will pass the joint resolution again in the spring of 2015, thereby putting
the matter on the November 2016 general election ballot, where a strong majority
5

of the voters will pass it and thereby open the way to a prompt redefinition of
marriage in Nevada. Yet the Plaintiffs still assert the politically powerless
falsehood in this Court to attempt to short-circuit the free, open, and democratic
process.
Another key falsehood is that in preserving man-woman marriage, the
majority was motivated by animusill-will and a mean-spirit towards and a bare
desire to harm gay men and lesbians. The evidence for this falsehood is an
argument built upon the first falsehood, that marriage is nothing more than a close
personal relationship. The argument goes like this: Because marriage is nothing
more than what the close personal relationship model allows, to let same-sex
couples marry will not adversely affect marriage at all, indeed, it will strengthen it,
and society will lose no valuable social goods now provided by marriage. There is
no downside. (How will letting Adam and Steve marry hurt your marriage?)
Because there is no downside, the majority has no good reason to keep same-sex
couples from marrying. Therefore, their motive must be animus; there is no other
possible explanation. Buttake away the blindfold of the first falsehood, and the
fair and honest person sees right away that there is much that is good and even
essential to society very likely to be lost when the law suppresses the man-woman
marriage institution. Wanting to preserve that which is good and essential against
6

such loss is a rational, intelligent, compelling reason for the majority voting as it
did. This reality puts the lie to the animus falsehood.
The genderless marriage proponents story also relies on several misleading
strategies.
One of those strategies is to argue that just as white supremacists engrafted
anti-miscegenation rules onto the marriage institution and were rightly repudiated
by the Supreme Court in Loving,
1
so homophobes, with laws like Nevadas 2002
marriage amendment, have engrafted the man-woman meaning onto marriage and
should likewise be repudiated by this Court. At first blush, this strategy is only
silly because, of course, the union of a man and a woman has been a core,
constitutive meaning of the marriage institution found in virtually every society
since pre-history. Nevadas marriage amendment did not add that institutionalized
meaning but rather sought to protect and preserve it and the valuable social
benefits flowing from it. On closer examination, this strategy reveals something
deeply troubling. White supremacists engrafted the anti-miscegenation rules onto
the marriage institutionand thereby altered marriage from how it had existed at
common law and throughout the millenniato bend that institution into the new
and foreign role of inculcating white supremacist doctrines into the consciousness
of the people generally. Because of the profound teaching, forming, and

1
Loving v. Virginia, 388 U.S. 1 (1967).
7

transforming power that fundamental social institutions like marriage have over all
of us, this evil strategy undoubtedly worked effectively for decades. Question:
Where does one see today a similar massive political effort to profoundly change
the marriage institution in order to bend it into a new and foreign role, one in
important ways at odds with its ancient and essential roles? Answer: The
genderless marriage movement. The big difference, of course, is the immorality of
the effort to advance the white supremacist dogma compared to the morality of the
effort to advance the social well-being and individual worth of gay men and
lesbians. Whether that moral objective is sufficiently weighty to justify so bending
and altering the marriage institution is for the free, open, democratic process to
decide. Certainly, the comparison of laws that protect the man-woman meaning of
marriage to anti-miscegenation laws is a false analogy that provides no basis for
any court to mandate the redefinition of marriage.
Another of the genderless marriage proponents key strategies is to cherry-
pick some phrases from Windsor
2
and then declare that, on the basis of those
phrases, the constitutional contest is overin their favor. The proponents employ
this strategy to try to get the courts to ignore both the powerful language and ideas
in Windsor clearly supporting the opposite conclusion and large swaths of well-
established Supreme Court jurisprudence contrary to the proponents selective

2
United States v. Windsor, 133 S. Ct. 2675 (2013).
8

reading of Windsor but consistent with that decision read in its entirety. That
jurisprudence, exemplified by such cases as Glucksberg
3
and San Antonio
Independent School District,
4
teaches that the Supreme Court generally refuses to
constitutionalize and thereby take out of the democratic processes big social policy
debates like the funding of public education,
5
treatment of the elderly
6
and the
poor,
7
and assisted suicide
8
and will do the same with the great debate over the
public meaning and social purposes of marriage.
A third misleading strategy of the genderless marriage proponents is to
attempt to make this and similar cases very much about homosexuality and the
lives of gay men and lesbians and very little about marriage. However, this case is
very much about marriage. It is crucially important in this case to get right what
marriage is. Equally important, however, is to see for what they are arguments
over what marriage ought to be. The all about gay men and lesbians strategy,
beyond its emotional and rhetorical uses, obscures that the public debate over
marriage is in large part a debate over what marriage ought to bea debate over
two competing models for marriage. Because the public debate is very much about

3
Washington v. Glucksberg, 521 U.S. 702 (1997).
4
San Antonio Indep. Sch. Dist. v. Rodgriguez, 411 U.S. 1 (1973).
5
Id.
6
Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307 (1976).
7
Dandridge v. Williams, 397 U.S. 471 (1970).
8
Glucksberg, 521 U.S. 702.
9

what marriage ought to be, this case is easily resolved here. No responsible person
sees the Constitution as authorizing federal judges to decide issues like what
marriage ought to be. Our whole history as a self-governing people cries out that
such an issue is to be decided through our democratic processes and that judges not
usurp that role.
More than a decade ago, Nevadans engaged in a large public debate about
marriagewhat it is and what it ought to beand resolved that debate through
their free, open, democratic process. Now they are re-engaging in that debate, and
just as before, they will resolve it through that same democratic process, if the
judges of this Court resist the siren song to resolve it first by imposing on Nevada
their personal views of the good.
* * * * * * * * * * * *
Law-trained people who argue and resolve the marriage issue might not
always know as much about marriage as they think they do
9
because they operate
under the false understanding that marriage is a legal construct. It is not (although
law, like other institutions, certainly interacts with the marriage institution). The
societal interests that constitutionally justify marriages limitation to the union of a

9
See Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social
Institution: A Reply to Andrew Koppelman, 2 U. St. Thomas L.J. 33, 34 (2004);
see also Monte Neil Stewart, Marriage Facts, 31 Harv. J.L. & Pub. Poly 313, 317
(2008) (Marriage Facts).
10

man and a woman exist in the very nature and fabric and operation of marriage in
our society. Thus, to do right by this case, this Court must educate itself about
marriage to a deep, not a superficial, level. A major burden of this brief is to
facilitate that education.
STATEMENT OF JURISDICTION
The Coalition accepts the Opening Briefs Statement of Jurisdiction.
STATEMENT OF THE ISSUES
1. Whether the Fourteenth Amendments Equal Protection Clause requires
Nevada to change its definition of marriage from the union of a man and a woman
to the union of two persons.
2. Whether the Fourteenth Amendments Due Process Clause requires
Nevada to change its definition of marriage from the union of a man and a woman
to the union of two persons.
10

10
Plaintiffs Complaint challenged Nevadas marriage laws only on the basis of
the Equal Protection Clause of the Fourteenth Amendment. Excerpts of Record
(ER) 71822. It did not raise a substantive due process claim, a fact noted and
honored by the parties and the district court at various times in the proceedings
below. E.g., ER 665. Now, however, the Plaintiffs are raising before this Court
and have fully briefed a substantive due process claim. The three Defendants
defending here (the Governor, Clerk-Recorder Glover, and the Coalition), after
thorough discussion among their respective counsel and very deliberate
consideration, have jointly decided (1) not to object to the Plaintiffs course
regarding their substantive due process claim, (2) to brief that issue in their
respective Answering Briefs, and (3) to urge this Court to address and resolve the
Plaintiffs substantive due process claim on the merits. The Coalition adopts the
11

ADDENDUM OF PERTINENT AUTHORITIES
Pursuant to Ninth Circuit Rule 28-2.7, the Coalition has reproduced
pertinent constitutional and statutory provisions in an Addendum accompanying
this Answering Brief.
STATEMENT OF THE CASE
Since attaining statehood, Nevadas legal definition of marriage has always
been limited to the union of a man and woman, first by constitutional adoption of
the common law,
11
then by express statutory language,
12
and most recently by
express constitutional amendment.
13
The legal definition has thus always mirrored
and supported the widely shared public meaning that, along with other widely
shared public meanings, makes up Nevadas vital social institution of marriage.
The Coalition for the Protection of Marriage (Coalition) is a Nevada non-
profit corporation organized to protect the man-woman marriage institution

statement of the reasons for that decision set forth in the other Defendants
Answering Briefs.
11
Van Sickle v. Haines, 7 Nev. 249, 28586 (1872), explains how Nevadas
constitution adopted the common law of England. The well-established common-
law definition of marriage is found in Hyde v. Hyde, (1866) 1 L.R.P. & D. 130, 134
(Lord Penzance): [M]arriage . . . may . . . be defined as the voluntary union for
life of one man and one woman, to the exclusion of all others.
12
The 1861 laws of Territory of Nevada regarding marriage were expressly
limited to a male and a female. Part 2:33: 1861. The same limitation on
marriage was codified in 1876 in the Statutes of Nevada, Nev. Stat. 88 (1876),
and is substantially the same today, Nev. Rev. Stat. 122.020.
13
Nev. Const. art. I, 21.
12

through, among other ways, use of the initiative process. Nevadas citizens
reserved to themselves the power to legislate by initiative. Nev. Const. art. XIX,
2(1). By way of the States petition process, they may place qualified initiatives to
amend the constitution on a statewide general election ballot. Id. If a
constitutional initiative obtains voter approval in two consecutive general
elections, the initiative is adopted, and the Nevada constitution is amended. Nev.
Const. art. XIX, 2(4); see also Am. Civil Liberties Union of Nevada v. Lomax,
471 F.3d 1010, 1012 (9th Cir. 2006).
With the Coalitions leadership, Nevadas citizens followed that process
through the 2000 and 2002 general elections to amend the Nevada constitution by
adding to it this language: Only a marriage between a male and female person
shall be recognized and given effect in this state. Nev. Const. art. I, 21
(Marriage Amendment). Both in 2000 and in 2002, the yes vote was slightly
in excess of two-thirds of all votes cast on the ballot initiative.
14
As noted above,
the Marriage Amendment did not change Nevadas definition of marriage.
However, it did give the man-woman meaning of the marriage institution the
highest level of protection that was in the power of Nevada voters to provide.

14
The 2000 vote in favor of the Marriage Amendment was 69%; the 2002 vote,
67%. Dist. Ct. Dkt. 30-1 at 2 5 (Affidavit of Richard Ziser).
13

In 2009, Nevadas legislature enacted the Nevada Domestic Partnership Act
(DPA), Nev. Rev. Stat. 122A.010 to .510. The DPA authorizes a social
contract between two people in an intimate and committed relationship of mutual
caring, without regard to gender. Nev. Rev. Stat. 122A.040,
122A.100(1)(a)(1). It further provides: Domestic partners have the same rights,
protections and benefits, and are subject to the same responsibilities, obligations
and duties under law . . . as are granted to and imposed upon spouses. Nev. Rev.
Stat. 122A.200(1)(a). Consistent with the Marriage Amendment, the DPA
expressly provides that a domestic partnership is not a marriage. Nev. Rev. Stat.
122A.510. Although the DPA is available to man-woman couples, without
question it was enacted in very large measure to benefit same-sex couples.
The Plaintiffs are eight same-sex couples, all residents of Nevada. Four of
the couples have married in jurisdictions other than Nevada. The other four
couples want to marry in Nevada. ER 70003.
Invoking 28 U.S.C. 1983, the Plaintiffs initiated this civil action against
Nevadas Governor and the clerks of Washoe County, Clark County, and Carson
City, alleging that Nevadas Marriage Amendment and similar state laws
(collectively Marriage Laws) violate the Constitutions Fourteenth Amendment
by preventing some of the Plaintiffs from marrying under color of Nevada law and
14

by withholding Nevadas recognition of the foreign marriages of the rest. ER 695
724. The unmarried Plaintiffs seek, as their ultimate relief, to marry in Nevada
with the States sanction; the Plaintiffs with foreign marriages, to have Nevada
recognize those marriages. ER 723. Such relief requires that Nevada change (or
be forced to change) its definition of marriage from the union of a man and a
woman to the union of two persons without regard to gender.
When the Plaintiffs brought this action, the Coalition successfully intervened
and became a party defendant. The Plaintiffs correctly acknowledge that they
withdrew their opposition to the Coalitions Rule 24 intervention motion, Opening
Br. at 7, but say somewhat misleadingly that they reserved the ability to revisit the
issue at a later stage if necessary when what their counsel in fact said was that
the plaintiffs would reserve the right to come back to the Court if it turns out that
theres any scheduling issues or delay that we dont anticipate. ER 666. No
scheduling issues or unanticipated delays occurred. More importantly, the
Plaintiffs did not make an issue on appeal of the Coalitions status as a party
defendant by intervention. Accordingly, the Coalition is a full party to this civil
action, not a second-class party, and it would be as wrong for this Court to ignore,
evade, or elide any argument properly made by the Coalition as it would be to do
the same in connection with any argument advanced by the Plaintiffs or the
15

Governor or Clerk-Recorder Glover. That is the logic and teaching of Rule 24
jurisprudence. See, e.g., United States v. California Mobile Home Park Mgmt. Co.,
107 F.3d 1374, 1378 (9th Cir. 1997) ([I]ntervening parties have full party status in
the litigation commencing with the granting of the motion to intervene.).
15

Three defendants actively defended in the district court (and are actively
defending here): the Governor, Carson City Clerk-Recorder Alan Glover, and the
Coalition. The Washoe County and Clark County clerks named as defendants
elected to stay on the sidelines.
The active parties filed various dispositive motions, and in a November 26,
2012, order the district court (Chief Judge Robert Clive Jones) ruled on them all,
holding that:
Plaintiffs claims were precluded at the district court level by Baker v.
Nelson, 409 U.S. 810 (1972) (mem.), except to the extent that they relied on

15
The Coalitions Article III standing is not an issue. In McConnell v. FEC, 540
U.S. 93 (2003), overruled in part on other grounds by Citizens United v. FEC, 558
U.S. 310 (2010), the Supreme Court, having determined that there was a case or
controversy based on the personal stake of the original defendant, permitted the
intervenor to piggyback on the existing dispute without showing its own
independent personal stake. Id. at 233. In any event, the Coalition demonstrated
in the record that it had four adequate, separate, and independent bases for its own
Article III standing. Dist Ct. Dkt. 30 at 13-15 & 30-1 at 2-6. (All Dist. Ct. Dkt.
references are to filings in the district court.) One of those, the Coalitions status
as the Marriage Amendments proponent, was subsequently rejected by the
reasoning in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), but the other three
bases remain valid.
16

Romer v. Evans, 517 U.S. 620 (1996), which the court saw as relying on a
theory other than the equal protection and due process theories advanced in
Baker. ER 912; in the interest of judicial economy, however, the district
court proceeded to address all the arguments then being raised by the
Plaintiffs;
Rational basis review is the proper level of judicial scrutiny for Plaintiffs
sexual orientation equal protection claim. ER 13, 1629;
Because they rationally advance legitimate societal (and hence
governmental) interests, Nevadas Marriage Laws do not perpetrate
unconstitutional sexual orientation discrimination. ER 3041.
Because Nevadas Marriage Laws treat men as a class and women as a class
equally, they do not perpetrate unconstitutional sex discrimination. ER 14
16.
Having disposed of all of Plaintiffs claims, the district court entered a final
judgment on December 3, 2012. ER 1. Plaintiffs filed their Notice of Appeal on
the same day. ER 4345.
SUMMARY OF THE ARGUMENT
Nevadas Marriage Laws have as their purpose and effect preserving and
perpetuating the man-woman meaning at the core of the marriage institution that
17

has always played a vital role in Nevada society. The assessments, perceptions,
and understandings of Nevadas voters and a wide and deep body of scholarly
work on social institutions together support the conclusion that this core man-
woman meaning materially and even uniquely provides multiple valuable benefits
and that if the law were to suppress that meaning (as it must for same-sex couples
to marry or have their foreign marriages recognized) then over time those benefits
will diminish and then likely be lost altogether. Accordingly, Nevada has
sufficiently good reasonsthe preservation of those valuable social benefitsfor
keeping the man-woman meaning at the core of the marriage institution. The
reality and validity of those reasons defeat all the Plaintiffs constitutional
challenges and certainly negate the animus slander.
ARGUMENT
I. RELEVANT AND ROBUST LEGISLATIVE FACTS SHOW THAT SOCIETY HAS GOOD
REASONS TO PRESERVE THE UNION OF A MAN AND A WOMAN AS A CORE
MEANING OF THE MARRIAGE INSTITUTION.

The ultimate issue here is whether the State of Nevada has sufficiently good
reasons to preserve the union of a man and a woman as a core meaning of the
marriage institution. That is the ultimate issue whether the theory is due process or
equal protection and, if equal protection, whether the theory is sexual orientation
18

discrimination or sex discrimination.
16
The standard for what constitutes
sufficiently good may vary depending on the particular theory,
17
but the ultimate
issue is the same.
A. When parties present competing legislative facts, the courts defer to those
chosen by the government decision-maker.

The reasons for preserving man-woman marriage reside in the realm of
legislative facts, not adjudicative facts. Adjudicative facts are facts about the
parties and their activities . . . , usually answering the questions of who did what,
where, when, how, why, with what motive or intentthe types of facts that go to
a jury in a jury case, or to the factfinder in a bench trial. Marshall v. Sawyer, 365
F.2d 105, 111 (9th Cir.1966) (quoting Kenneth C. Davis, The Requirement of a
Trial-Type Hearing, 70 Harv. L. Rev. 193, 199 (1956)) (internal quotation marks
omitted).
18
Legislative facts, by contrast, do not usually concern [only] the
immediate parties but are general facts which help the tribunal decide questions of
law, policy, and discretion. Id. Legislative facts are general facts which help
the tribunal decide questions of law and policy, are without reference to specific
parties, and need not be developed through evidentiary hearings. Libertarian

16
Compare United States v. Juvenile Male, 670 F.3d 999, 101113 (9th Cir.
2012) (substantive due process), with High Tech Gays v. Def. Indus. Sec.
Clearance Office, 895 F.2d 563 (9th Cir. 1990) (sexual orientation discrimination),
and United States v. Virginia, 518 U.S. 515 (1996) (sex discrimination).
17
See note 16 supra.
18
We are not aware of any contested adjudicative facts in this case.
19

Natl Comm., Inc. v. FEC, 930 F. Supp. 2d 154, 157 (D.D.C. 2013) (quoting
Friends of the Earth v. Reilly, 966 F.2d 690, 694 (D.C. Cir. 1992) and Assn of
Natl Advertisers, Inc. v. FTC, 627 F.2d 1151, 116162 (D.C. Cir. 1979)). A
legislative fact is a question of social factors and happenings . . . . Dunigan v.
City of Oxford, Mississippi, 718 F.2d 738, 748 n.8 (5th Cir. 1983).
Certain legislative facts may not be contested or contestable; many presented
in this Answering Brief are in that category. But sometimes legislative facts are
contested, that is, informed and thoughtful people disagree on the validity of a
proffered legislative fact. In such cases, the courts do not step in to declare one
view to be true and the competing view false. Rather, if the legislative fact is fairly
debatable, the courts defer to the government decision-makers choice. The courts
do this for several powerful reasons. First, the courts understand and value the
phenomenon of collective wisdom. Our democratic ethos privileges the reasonable
understandings and conclusions reachedthe legislative facts chosenby the
people through our democratic processes, not those of this or that elite no matter
how confidently asserted. See, e.g., Dandridge v. Williams, 397 U.S. 471, 487
(1970) (We do not decide today that the Maryland regulation is wise, that it best
fulfills the relevant social and economic objectives that Maryland might ideally
espouse, or that a more just and humane system could not be devised. Conflicting
20

claims of morality and intelligence are raised by opponents and proponents of
almost every measure . . . . [T]he Constitution does not empower this Court to
second-guess state officials . . . .).
A Washington State case asserting a right to assisted suicide provides a
powerful example of this privileging of the reasonable legislative facts chosen
through our democratic processes. The State prohibited assisted suicide. This
Court en banc held that prohibition unconstitutional. Compassion in Dying v.
Washington, 79 F.3d 790, 798 (9th Cir. 1996) (en banc). In doing so, it dismissed
some of the States assessments of social practices and their likely impacts. For
example, the State asserted an interest in protecting the integrity and ethics of the
medical profession, but this Court concluded that the integrity of the medical
profession would [not] be threatened in any way by [physician-assisted suicide],
despite the contrary assessment of the State and responsible observers of the
medical profession. Id. at 827. As another example, the State asserted an interest
in protecting vulnerable groupsincluding the poor, the elderly, and disabled
personsfrom abuse, neglect, and mistakes, but this Court dismissed the States
concern that disadvantaged persons might be pressured into physician-assisted
suicide as ludicrous on its face. Id. at 825. On these two points and others like
them, the Supreme Court flatly rejected this Courts substitution of its own
21

assessments of the relevant social practices and their likely impacts for those of the
State and unanimously reversed this Courts judgment. Washington v.
Glucksberg, 521 U.S. 702, 72836 (1997). The Supreme Court privileged the
reasonable understandings and conclusions reachedthe legislative facts chosen
by the people through democratic processes.
Second, many legislative facts, often the most important, are really
predictions of what will happen in society in the future assuming this or that
present governmental action. Given the complexity of human society, one sensible
prediction ought not be accepted as an objective truth in the face of a contrary
but still rationally made prediction. E.g., FCC v. Natl Citizens Comm. for
Broadcasting, 436 U.S. 775, 81314 (1978) (However, to the extent that factual
determinations were involved . . . , they were primarily of a judgmental or
predictive nature . . . . In such circumstances complete factual support in the
record for the . . . judgment or prediction is not possible or required; a forecast of
the direction in which future public interest lies necessarily involves deductions . . .
.) (quoting FPC v. Transcon. Gas Pipe Line Corp., 365 U.S. 1, 29 (1961));
Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 66566 (1994) (Kennedy, J.,
plurality opinion) (noting that [s]ound policymaking often requires legislators to
forecast future events and to anticipate the likely impact of these events based on
22

deductions and inferences for which complete empirical support may be
unavailable and highlighting a substantial deference to the government
decision-maker in such situations).
Third, the courts understand the limits on their own competence. It makes
no difference that the [legislative] facts may be disputed or their effect opposed by
argument and opinion of serious strength. It is not within the competency of the
courts to arbitrate in such contrariety. Vance v. Bradley, 440 U.S. 93, 112 (1979)
(quoting Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357 (1916)) (internal
quotation marks omitted).
In rational basis review, the contest between competing legislative facts can
be quite lopsided against the government and the government will still prevail.
The courts uphold the challenged government action if there is any reasonably
conceivable state of legislative facts that could provide a rational basis for it. See,
e.g., FCC v. Beach Commcns, Inc., 508 U.S. 307, 315 (1993). The action is
presumed constitutional and [t]he burden is on the one attacking the legislative
arrangement to negative every conceivable basis which might support it[.] Heller
v. Doe, 509 U.S. 312, 320 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts
Co., 410 U.S. 356, 364 (1973)). If any basis is even minimally debatable, plaintiffs
lose. The government, by contrast, has no duty to produce evidence to sustain the
23

rationality of a statutory classification. Id. [A] legislative choice is not subject
to courtroom factfinding and may be based on rational speculation unsupported by
evidence or empirical data. Beach Commcns, 508 U.S. at 315. Moreover, even
if all defendants fail to articulate the requisite rational basis, a court will still
uphold the challenged government action if it on its own can identify rational
grounds. See, e.g., Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 463 (1988).
This settled law has an impact on summary judgment jurisprudence. As the
district court correctly observed in the Hawaii marriage case:
Disputes of fact that might normally preclude summary judgment in
other civil cases, will generally not be substantively material in a
rational basis review. That is, the question before this Court is not
whether the legislative facts are true, but whether they are at least
debatable.

Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1105 (D. Haw. 2012) (citations
omitted).
Even if the level of judicial scrutiny is heightened (and there is no basis for
use of any level of scrutiny other than rational basis review in this case) the courts
will still not step in to declare as true or false a well-contested legislative fact
but instead will use the legislative facts chosen by the government decision-maker.
The reasons for such judicial deferencethe limits of the courts competence, the
uncertainty of predictions of society-wide consequences, and the wisdom of
24

respecting democratically made choices between competing legislative factsstill
remain. Although under heightened scrutiny the courts may not accept some
minimally plausible legislative fact conjured up in support of the challenged
government action, they will defer to robustly supported legislative facts even if
opposed by argument and opinion of serious strength. It is not within the
competency of the courts to arbitrate in such contrariety. Vance, 440 U.S. at 112
(quoting Rast, 240 U.S. at 357).
All this is demonstrated by Grutter v. Bollinger, 539 U.S. 306 (2003), which
applied the highest and most rigorous level of judicial scrutiny because of the
presence of racial classifications. The plaintiff in that case challenged the
University of Michigan Law Schools consideration of race and ethnicity in its
admission decisions, specifically consideration in favor of applicants from three
underrepresented minority groups: blacks, Hispanics, and Native Americans. This
public law schools leaders made an assessment that diversity will, in fact, yield
educational benefits. Id. at 328 (emphasis added). That is the legislative fact
chosen by the government decision-makers, but it was a vigorously contested
legislative fact, with many able voices making powerful showings in favor of just
the opposite legislative fact, that the diversity sought did not yield educational
25

benefits and even harmed those intended to be benefitted.
19
Nevertheless, the
majority of the Supreme Court deferred, expressly and unabashedly, to the Law
Schools conclusion that its racial experimentation leads to educational benefits.
In the majoritys own words:
The Law Schools educational judgment that such diversity is
essential to its educational mission is one to which we defer. The Law
Schools assessment that diversity will, in fact, yield educational
benefits is substantiated by respondents and their amici. Our scrutiny
of the interest asserted by the Law School is no less strict for taking
into account complex educational judgments in an area that lies
primarily within the expertise of the university.

Id. at 328. On the basis of this deference to the government decision-makers
choice of a contested legislative fact (and, necessarily, rejection of contrary
assessments), the Court upheld the law schools admissions program. The Court
did not anoint one assessment as true and the contrary assessment as false. It
deferred to the government decision-makers choice.

19
In dissent, Justice Thomas marshaled those voices and added his own,
stating:

The Courts deference to the Law Schools conclusion that its
racial experimentation leads to educational benefits will, if adhered to,
have serious collateral consequences. The Court relies heavily on
social science evidence to justify its deference. The Court never
acknowledges, however, the growing evidence that racial (and other
sorts) of heterogeneity actually impairs learning among black
students.

539 U.S. at 364 (Thomas J., dissenting) (citations omitted).
26

These firmly established legal principles matter very much in this case.
Here, the Plaintiffs, their experts, and their amici fail to do two things: one, they
fail even to contest many of the legislative facts supporting Nevadas choice to
preserve the man-woman marriage institution and, two, as to the rest of those
supportive legislative facts, they fail to negate the reality that the peoples
assessments are reasonably and even robustly supported.
B. The union of a man and a woman meaning at the core of Nevadas
marriage institution provides valuable social benefits.

The following robustly supported legislative facts sustain Nevadas
Marriage Laws against all constitutional challenges:
Marriage is a vital social institution,
20
and, like all social institutions, is
constituted by a unique web of shared public meanings.
21
Many of those
meanings rise to the level of norms.
22

20
E.g., Williams v. North Carolina, 317 U.S. 287, 303 (1942) ([T]he marriage
relation [is] an institution more basic in our civilization than any other.);
Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003) (Marriage
is a vital social institution.).
21
See, e.g., John R. Searle, The Construction of Social Reality 32 (1995) (Searle,
Construction); Supplemental Excerpts of Record (SER) 140; see also Monte
Neil Stewart, Genderless Marriage, Institutional Realities, and Judicial Elision, 1
Duke J. Const. L. & Pub. Poly 1, 828 (2006) (Institutional Realities).
22
See, e.g., Victor Nee & Paul Ingram, Embeddedness and Beyond: Institutions,
Exchange, and Social Structure, in The New Institutionalism in Sociology 19
(Mary C. Brinton & Victor Nee eds., 1998) (An institution is a web of interrelated
normsformal and informalgoverning social relationships.).
27

The marriage institution affects individuals profoundly; institutional
meanings and norms teach, form, and transform individuals, supplying identities,
purposes, practices, ideals, and a moral/ethical compass for navigating the
institutions realm.
23

Just as a society creates and sustains its marriage institution (by the use of
language
24
), a society can change it. Because marriage is constituted by shared
public meanings, it is necessarily changed when those meanings are changed or are
no longer sufficiently shared. Indeed, that is the only way marriage can be
changed.
25
When marriages previously institutionalized public meanings and
norms are no longer sufficiently shared by a society, through whatever means and
for whatever reason, the institution disappears.
26
This is called de-
institutionalization. A new institution with different public meanings and norms

23
See, e.g., Helen Reece, Divorcing Responsibly 185 (2003); SER 140; Monte
Neil Stewart, Judicial Redefinition of Marriage, 21 Can. J. Fam. L. 11 (2004)
(Judicial Redefinition); see also Richard R. Clayton, The Family, Marriage, and
Social Change 19, 22 (2d ed. 1979); Monte Neil Stewart, Eliding in Washington
and California, 42 Gonzaga L. Rev. 501, 503 (2007) (Eliding).
24
See Searle, Construction, supra note 21, at 32; John R. Searle, Making the
Social World: The Structure of Human Civilization 90 (2010) (Searle, Social
World).
25
See, e.g., Eerik Lagerspetz, The Opposite Mirrors: An Essay on the
Conventionalist Theory of Institutions 28 (1995); Eerik Lagerspetz, On the
Existence of Institutions, in On the Nature of Social and Institutional Reality 70, 82
(Eerik Lagerspetz et al. eds., 2001).
26
See, e.g., id.; Searle, Construction, supra note 21, at 117.
28

may take the previous institutions name (marriage), but it will be a different
institution.
Across time and cultures, a core meaning constitutive of the marriage
institution has nearly always been the union of a man and a woman.
27
Marriages
man-woman meaning provides materially and even uniquely multiple valuable
social benefits, which we address later on.
A society can have only one social institution denominated marriage.
Society cannot simultaneously have as shared, core, constitutive meanings of the
marriage institution both the union of a man and a woman and the union of any
two personsany more than it can have monogamy as a core meaning if it also
allows polygamy. One meaning necessarily displaces or at least precludes the
other. Given the role of language and meaning in constituting and sustaining
institutions, two coexisting social institutions known society-wide as marriage
amount to a factual impossibility. Thus, every society must choose either to retain
man-woman marriage or, by force of law, replace it with a radically different
genderless marriage regime.
28
(The Plaintiffs core message is that the Constitution
requires this Court to mandate the latter.)

27
See, e.g., SER 1920, 52434.
28
A society actually has a third option: no normative marriage institution at all.
Many of the most influential advocates of genderless marriage correctly and gladly
29

Although the law did not create the man-woman marriage institution,
29
it has
the power to de-institutionalize it by suppressing the shared public meanings that
constitute it.
30
The laws power arises from its expressive or educative function
magnified by its authoritative voice.
31
With respect to the marriage institution, the
Plaintiffs seek to use the laws power to suppress the man-woman meaning by
replacing it with the any-two-persons meaning. (That is the only way that they can
marry in any intelligible sense.) The reach of that power to suppress is large and
sufficient, especially in light of the fact that, after redefinition, the old meaning
would be deemed unconstitutional and the mandate imposing the new meaning
would be seen as vindicating some important right. In those circumstances,
suppression would be a constitutional imperative.

see that as leading quite naturally to no normative marriage institution at all. For a
clear example of high-level advocacy for such, see SER 690716.
29
Man-woman marriage is unquestionably a pre-political institution. See, e.g.,
John Locke, Second Treatise of Government 47 (Richard H. Cox ed., 1982) (1690);
SER 497523; Searle, Social World, supra note 24, at 86; see also Richard W.
Garnett, Taking Pierce Seriously: The Family, Religious Education, and Harm to
Children, 76 Notre Dame L. Rev. 109, 114 n.29 (2000) (the laws provisions
regulating marriage no more created the marriage institution than the Rule
Against Perpetuities created dirt).
30
See, e.g., SER 59, 93, 14041; Nancy F. Cott, The Power of Government in
Marriage, 11 The Good Socy 88 (2002).
31
See, e.g., Joseph Raz, The Morality of Freedom 162 (1986); Cass R. Sunstein,
Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 6971 (1996);
Matthew B. OBrien, Why Liberal Neutrality Prohibits Same-Sex Marriage:
Rawls, Political Liberalism, and the Family, 1 Brit. J. Am. Legal Stud. 411, 413
15 (2012); see also SER 59, 93, 14041, 68389.
30

Genderless marriage is a profoundly different institution than man-woman
marriage.
32
Although there is overlap in formative instruction between the two
possible marriage institutions, the significance is in the divergence, which is seen
in the nature of the two institutions respective social benefits and also in the two
institutions respective norms, ideals, and practices. (This divergence is explained
in more detail below.)
The radical difference between the two institutions could not be otherwise:
fundamentally different meanings, when magnified by institutional power and
influence, produce divergent social identities, aspirations, projects, and ways of
behaving, and thus different social benefits.
33
Well-informed observers of
marriageregardless of their sexual, political, or theoretical orientations
uniformly acknowledge the magnitude of the differences between the two possible
institutions of marriage.
34
The reality is that changing the meaning of marriage to

32
See, e.g., OBrien, supra note 31, at 41315; Stewart, Marriage Facts, supra
note 9, at 32324.
33
See, e.g., SER 59, 93.
34
We begin a long list (that could readily be made even longer) with the then
executive director of Lambda Legal Defense and Education Fund, Thomas
Stoddard, who argued that enlarging the concept of marriage would necessarily
transform it into something new. Thomas B. Stoddard, Why Gay People Should
Seek the Right to Marry, Out/Look Natl Gay & Lesbian Q., Fall 1989, at 19. In
addition, e.g., David Blankenhorn, The Future of Marriage 167 (2007) (Future)
(I dont think there can be much doubt that this post-institutional view of marriage
constitutes a radical redefinition. Prominent family scholars on both sides of the
dividethose who favor gay marriage and those who do notacknowledge this
31

that of any two persons will transform the institution profoundly, if not
immediately then certainly over time as the new meaning is mandated in texts, in
schools, and in many other parts of the public square and voluntarily published by
the media and other institutions, with society, especially its children, thereby losing
the ability to discern the meanings of the old institution.
None of the Plaintiffs, their experts, or their amici negate these legislative
facts.
35
The Plaintiffs attempt to rely on expert witness Letitia Anne Peplaus

reality.); Daniel Cere, War of the Ring, in Divorcing Marriage: Unveiling the
Dangers in Canadas New Social Experiment 9, 1113 (Daniel Cere & Douglas
Farrow eds., 2004) (Divorcing Marriage); Douglas Farrow, Canadas Romantic
Mistake, in Divorcing Marriage, supra, at 15; Ladelle McWhorter, Bodies and
Pleasures: Foucault and the Politics of Sexual Normalization 125 (1999); Raz,
supra note 31, at 393; Judith Stacey, In the Name of the Family: Rethinking
Family Values in the Postmodern Age 12628 (1996); Sherif Girgis et al., What Is
Marriage? Man and Woman: A Defense 5455 (2012); Katherine K. Young &
Paul Nathanson, The Future of an Experiment, in Divorcing Marriage, supra, at
4856; Angela Bolt, Do Wedding Dresses Come in Lavender? The Prospects and
Implications of Same-Sex Marriage, 24 Soc. Theory & Prac. 111, 114 (1998);
Devon W. Carbado, Straight Out of the Closet, 15 Berkeley Womens L.J. 76, 95
96 (2000); Gallagher, supra note 9, at 53 (Many thoughtful supporters of same-
sex marriage recognize that some profound shift in our whole understanding of the
world is wrapped up in this legal re-engineering of the meaning of marriage.); E.J.
Graff, Retying the Knot, The Nation, June 24, 1996, at 12; Nan D. Hunter,
Marriage, Law, and Gender: A Feminist Inquiry, 1 Law & Sexuality 9, 1219
(1991); Andrew Sullivan, Recognition of Same-Sex Marriage, 16 Quinnipiac L.
Rev. 13, 1516 (1996).
35
Genderless marriage proponents sometimes try to contest that genderless
marriage is a profoundly different institution than man-woman marriage but their
counter-argument is driven by expediency; because of their need to elide the
argument we make here, in their public pronouncements advocates have carefully
minimized the impact of the change they seek. Deborah A. Widiss, Changing the
32

opinion that [t]here is no scientific support for the notion that allowing same-sex
couples to marry would harm different-sex relationships or marriages. The facts
that affect the quality, stability, and longevity of different-sex relationships would
not be affected by marriages between same-sex couples. ER 306. This opinion,
however, evidences a large blind spot. Peplau ignores or is ignorant of the
teachings of the new institutionalism in the social sciences, which focus on the
role of social institutions in shaping social behaviors through widely shared public
meanings that form and transform individuals in profound ways.
36
Accordingly,
she does not come to grips with and certainly does not deny the social institutional
realities of marriage set forth in this Section.
37

Marriage Equation, 89 Wash. U.L. Rev. 721, 778, 781 (2012). The proponents
counter-argument is also based on a quite constricted and factually inaccurate
view of what man-woman marriage is in the American experience. In subsection
C. below, we demonstrate that views factual inaccuracy.
36
See generally The New Institutionalism in Organizational Analysis (Walter W.
Powell & Paul J. DiMaggio eds., 1991); Peter A. Hall & Rosemary C.R. Taylor,
Political Science and the Three New Institutionalisms, 44 Pol. Stud. 936 (1996);
Victor Nee, Sources of the New Institutionalism, in The New Institutionalism in
Sociology 1 (Mary C. Brinton & Victor Nee eds., 2001); see also Monte Neil
Stewart et al., Marriage, Fundamental Premises, and the California, Connecticut,
and Iowa Supreme Courts, 2012 BYU L. Rev. 193, 204 (Fundamental
Premises).
37
Peplaus blind spot regarding social institutional realities is evident in other
ways. An example is her reliance on divorce data from Massachusetts in the few
years immediately before and immediately after the 2004 inception of court-
mandated genderless marriage there. ER 32223. Her point is that the sky is not
falling now that Massachusetts has a genderless marriage regime. But the
undeniable reality of institutional momentum clearly invalidates this point.
33

The man-woman meaning at the core of the marriage institution does and
will influence people and guide their conduct now and in the coming generations in
ways positive and beneficial to children generally, to the generality of adults, and
to our Nations commitment to religious liberties. The social institutional realities
recognized and chosen by Nevada and its citizens teach clearly that if the law were
to suppress that meaning, the readily predicted consequence would be first the
diminution over time and then the loss of the valuable social benefits that meaning
uniquely provides, with a genderless marriage regime being inimical to those
benefits.
The benefits for children at stake here flow from marriages historic success
in maximizing the number of children who know and are raised by their own
mother and father. Those benefits include generally better life-long outcomes in
the psychological, emotional, physical, educational, employment, marital, and
other social realms. In trying to contest the reality of those benefits, genderless
marriage proponents make a counter-argument that boils down to this: Men and
women are interchangeable. A child does not need both a mother and a father.
Those who believe otherwise are bigots. The Constitution, however, does not

Something as massive and pervasive in our society and humanity as the man-
woman marriage institution, like a massive ocean-going ship, does not stop or turn
in a short space or a short time. With an institution as fundamental and deep-
rooted as marriage, one must think in terms of decades to observe the full effects of
changes in the public meanings.
34

allow a judge to buy such a counter-argumentin light of the robust,
democratically chosen legislative facts against it.
Further legislative facts set forth below show genderless marriage regimes
tendency to be in conflict with and even destructive of the religious liberties of a
large portion of our Nations people of faith and their churches. A court-imposed
change in the definition of marriage inevitably would create a wide variety of
religious-freedom conflicts for individuals who object to genderless marriage on
religious grounds. Thus, another valuable benefit of man-woman marriage at stake
here is its protection of those religious liberties.
1. The man-woman marriage institution maximizes the likelihood that children
will have both mother and father in their lives, an arrangement that, on a wide
range of indicators of human flourishing, has been shown to generate the best
life-long outcomes.

Man-woman marriage teaches an important cluster of norms and ideals: of a
child knowing and being reared by her mother and father, of a child being raised
by parents who can at the very least give her the benefits of gender
complementarity, and of a child experiencing a father rather than fatherlessness in
the home. Because it is a powerful social institution, the teachings of man-woman
marriage will make more likely the realization of those ideals. The teachings of
genderless marriage run counter to all those norms and ideals. Because it will
completely replace the old institution, genderless marriages contrary teaching will
35

make realization of those ideals less likely; indeed, the ideals will no longer be
socially endorsed at all but rather seen as discredited relics. Thus, this case will
determine whether our society will maximize or minimize the benefits of a child
knowing and being reared by her mother and father, of experiencing gender
complementarity in the home of her childhood and youth, and of being spared from
fatherlessness and the ills associated with it.
Nevada has chosen to maximize those benefits. For most Nevadans,
marriage is principally about the welfare of children, rather than principally about
meeting the emotional needs of adults or about affirming adults private choices.
38

The Constitution allows Nevada to maximize those benefits.
a. The man-woman meaning in marriage furthers Nevadas vital interest in
maximizing the number of children who are raised by their own two biological
parents.

Common sense and emerging social science findings teach that knowing and
be reared by her mother and father in and of itself is a source of strength and
flourishing for the child. This ideal of a child knowing and being brought up by
his or her biological parentswith exceptions being justified only in the best
interests of the child, not for the gratification of any adult desiresmatters to

38
OBrien, supra note 31, makes an in-depth examination of the supposed public
reasons advanced to support one or the other possible marriage institutions,
concluding that no valid public reason sustains genderless marriage but that
maximizing the benefits of a child knowing and being reared by her mother and
father is a valid public reason sustaining man-woman marriage.
36

children.
39
Prof. Katharine K. Baker perceived this in her analysis of
bionormativitythat is, of the norm that parental rights and obligations align with
biological parenthood.
40
She perceived that the interests served by that norm must
be analyzed separately for the state, parents, and children.
41
Childrens interests in
bionormativity differ from the states and from parents; children seem to have
what is potentially the strongest interest in the biology of biological parenthood.
42

Professor Baker explains that this may be because there are psychological benefits
associated with being raised by ones biological parents.
43

A recent study confirms Prof. Bakers suggestion regarding the
psychological benefits associated with being raised by ones biological parents.
That study was the first effort to learn about the identity, kinship, well-being, and
social justice experiences of young adults who were conceived through sperm
donation.
44
It assembled a representative sample of 485 adults between the ages
of 18 and 45 years old who said their mother used a sperm donor to conceive them,
and used as comparison groups 562 young adults adopted as infants and 563 young
adults raised by their biological parents . The study found that, on average, young

39
See, e.g., SER 43878, 71738; cf. SER 77.
40
Katharine K. Baker, Bionormativity and the Construction of Parenthood, 42
Ga. L. Rev. 649, 68291 (2008).
41
Id. at 682.
42
Id.
43
Id. at 686.
44
SER 304.
37

adults conceived through sperm donation are hurting more, are more confused,
and feel more isolated from their families.
45
Among other negative outcomes, the
study found, after controlling for socio-economic factors, that sperm donor
offspring are significantly more likely than their peers raised by their biological
parents to manifest delinquency, substance abuse and depression and are 1.5 times
more likely to suffer from mental health problems.
46

Man-woman marriage not only supports the birthright of children to be
connected to their mothers and fathers, it is the indispensable social predicate for
that birthright to have meaning and reality.
47
Where man-woman marriage is a
strong social institution, it is much more likely that a child knows and is raised by
the man and the woman whose sexual union created her, exactly because the
parents are married. Where the institution is weaker, such an outcome is less likely.
Where the marriage ethos is weak or nonexistent, a child knowing and being raised
by his mother and father is a mere fortuity.
48

A genderless marriage regime is not just neutral towards the childs interest
in bonding with her biological parents; as a matter of public policy and by force of

45
Id.
46
Id. at 306, 33839. For a fuller summary of the studys findings, see OBrien,
supra note 31, at 44648; see also SER 54676.
47
See, e.g., SER 58, 93; Stewart, Fundamental Premises, supra note 36, at 243
56.
48
Id.
38

law, it thwarts that interest.
49
The legalization of same-sex marriage, while
sometimes seen as a small change affecting just a few people, raises the startling
prospect of fundamentally breaking the legal institution of marriage from any ties
to biological parenthood.
50
That prospect is a reality in Canada; the same bill
redefining marriage to the union of any two persons also contained, in order to
maintain the coherence of the scheme, a provision ending in law the concept of
natural parenthood and replacing it with the concept of legal parenthood (a
childs parents are who the state says the parents are).
51
After implementation of
genderless marriage, a child knowing and being raised by her biological parents
will not be the result of cultural, political, and institutional aspirations and
objectives, but very likely a mere fortuity.
[S]ame-sex marriage would require us in both law and culture to deny
the double origin of the child. . . . It would require us, legally and
formally, to withdraw marriages greatest promise to the childthe
promise that, insofar as society can make it possible, I will be loved
and raised by the mother and father who made me. . . . But a society
that embraces same-sex marriage can no longer collectively embrace
this norm and must take specific steps to retract it. One can believe in
same-sex marriage. One can believe that every child deserves a
mother and a father. One cannot believe both.
52

49
See, e.g., SER 16366, 182297; Blankenhorn, Future, supra note 34, at 201.
50
SER 213.
51
SER 19192.
52
Blankenhorn, Future, supra note 34, at 201.
39

Additional benefits maximized by the ideal of married mother-father child-
rearing and crucial for a childs and hence societys well-being, include physical,
mental, and emotional health and development; academic performance and levels
of attainment; and avoidance of crime and other forms of self- and other-
destructive behavior such as drug abuse and high-risk sexual conduct. To
maximize the possibility of achieving those outcomes in society generally, married
mother-father child-rearing is the optimal mode.
53

This is a contested point; genderless marriage advocates argue that outcomes
for same-sex couple childrearing are just as good, as shown by various studies. In
context, they are saying that it is not the man-woman meaning at the core of the
marriage institution that materially contributes to this social good (the optimal
child-rearing mode); rather, that social good results from the care of any two
loving, mutually committed adults; therefore, to de-institutionalize man-woman
marriage and replace it with a genderless marriage regime will not result in
diminution or loss of this social good.
The Plaintiffs, most of their experts, and many of their amici make a rather
massive effort to persuade this Court to declare their no differences legislative
facts to be true. However, there are robustly supported legislative facts to the

53
See, e.g., SER 1181, 47996, 53560, 57784, 593617.
40

contrary. Social science sees married mother-father as the child-rearing mode with
the best outcomes for the child on very important measures. The intact,
biological, married family remains the gold standard for family life in the United
States, insofar as children are most likely to thriveeconomically, socially, and
psychologicallyin this family form.
54
In contrast, various social science studies
have severely undermined the claim of no difference between married mother-
father child-rearing and same-sex couple child-rearing.
55

Almost since the beginning of judicial consideration of the constitutionality
of man-woman marriage twenty years ago, genderless marriage advocates have
urged the courts to declare the no differences assessments true. Every

54
SER 11. Man-woman marriage is the most effective means humankind has
developed so far to maximize the level of private welfare provided to the children
conceived by passionate, heterosexual coupling. See, e.g., SER 4986; 101; 585
92; Stewart, Judicial Redefinition, supra note 23, at 4452. In addition to the
provision of physical needs such as food, clothing, and shelter, the phrase private
welfare encompasses opportunities such as education, play, work, and discipline
and intangibles such as love, respect, and security. The effective provision of
private welfare to children generally is among the most significant of the social
benefits conferred by man-woman marriage and constitutes the deep logic of
marriage. See Stewart, Judicial Redefinition, supra note 23, at 4446.
55
Douglas W. Allen, High school graduation rates among children of same-sex
households, 11 Review of Economics of the Household 635 (2013); Mark D.
Regnerus, Parental Same-Sex Relationships, Family Instability, and Subsequent
Life Outcomes for Adult Children: Answering Critics of the New Family Structures
Study with Additional Analysis, 41 Soc. Sci. Research 1367 (2012); SER 61853.
For good summaries of the latter two studies, see OBrien, supra note 31, at 443
45, and Jackson v. Abercrombie, 884 F. Supp. 2d. 1065, 1115 (D. Haw. 2012); see
also SER 65482.
41

American appellate court except one
56
has declined to do so; they have instead
heeded Justice Sosmans cogent warnings that the [i]nterpretation of the data
gathered by those studies then becomes clouded by the personal and political
beliefs of the investigators and that the most neutral and strict application of
scientific principles to this field would be constrained by the limited period of
observation that has been available.
57

The assertions of various professional organizations appearing as amici in
support of the Plaintiffs are no better than the studies from which they are
purportedly derived. As a matter of good science, those assertions cannot
substitute for otherwise underdeveloped or inadequate studies. In our move to
good science, we long ago abandoned the notion that invoking Aristotles name (or
that of the American Psychological Association) ended inquiry; we abandoned that
notion because the sole test must be what the doing of the science itself discloses.
As already demonstrated, the studies underlying the organizations assertions are
robustly contested.
Further, the opinion testimony of Prof. Nancy Cott is of no avail to the
Plaintiffs position. Prof. Cotts attempted challenge to the man-woman marriage

56
See Varnum v. Brien, 763 N.W.2d 862, 87374, 899 n.26 (Iowa 2009).
57
Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 97980 (Mass. 2003)
(Sosman, J., dissenting); accord Richard E. Redding, Politicized Science, 50 Socy
439 (2013) (analyzing reaction to Regnerus study).
42

institution as the provider of the optimal child-rearing mode actually reaffirms that
benefits continuing validity. Prof. Cott says: The notion that the main purpose
of marriage is to provide an ideal or optimal context for raising children was never
the prime mover in states structuring of the marriage institution in the United
States, and it cannot be isolated as the main reason for the states interest in
marriage today.
58
Note the careful limitation to main purpose, prime mover,
and main reason. Prof. Cott does not deny that perpetuating the optimal child-
rearing mode (by perpetuating the man-woman marriage institution) continues as
an important, even compelling, societal interest. Any quibble over whether it is
the main or prime interest at stake is irrelevant to this Courts constitutional
analysis; what is relevant is that the interest is real, valuable, and enduring.
b. The man-woman meaning in marriage furthers Nevadas vital interest in
maximizing the number of children raised by parents who can at least give them
the benefits of gender complementarity.

The man-woman marriage institution teaches powerfully the social ideal and
model of a child being raised by a man and a woman, even in the absence of
complete or partial biological ties. Thus, the man-woman meaning maximizes the
number of children receiving the benefits of gender complementarity in their
upbringing. Those benefits are real. Even when children are not reared by their
own married biological fathers and mothers, children who live with a married

58
ER 269.
43

mother and father, one of whom is an adoptive parent, do almost as well (again, on
average) as children raised by both biological parents.
59
Research also establishes
that, for whatever reasons,
60
mothers and fathers tend on average to parent
differently and thus make unique contributions to the childs overall
development.
61
The psychological literature on child development has long
recognized the critical role that mothers play in their childrens development.
62

More recent research also reveals the vital role that fathers play in their childrens
development.
63
In short, gender diversity or complementarity among parentswhat one
scholar has called gender-differentiated parenting
64
provides important benefits

59
See Regnerus, supra note 55, at 1367.
60
For example, some researchers have concluded that males and females have
significant innate differences that flow from differences in genes and hormones.
According to these researchers, these biochemical differences are evident in the
development of male and female brain anatomy, psyche, and even learning styles.
See Leonard Sax, Why Gender Matters: What Parents and Teachers Need to Know
About the Emerging Science of Sex Differences (2005). But whether differences in
parenting styles are the result of inherent differences between the sexes or other
factors, there is no question that fathers tend to parent differently from mothers.
61
Id.; David Blankenhorn, Fatherless America (1995) (Fatherless).
62
E.g., Brenda Hunter, The Power of Mother Love: Transforming Both Mother and
Child (1997).
63
See, e.g., David Popenoe, Life Without Father: Compelling New Evidence that
Fatherhood & Marriage are Indispensable for the Good of Children and Society
146 (1996) (The burden of social science evidence supports the idea that gender-
differentiated parenting is important for human development and that the
contribution of fathers to childrearing is unique and irreplaceable.).
64
Id.
44

to children. Accordingly, Nevada and its people understandably have elected to
preserve that social institution most effective at maximizing the number of children
receiving those benefits.
In the context of these discussions of child-rearing modes, our point must
not be misunderstood. We do not contend that the individual parents in same-sex
couples are somehow inferior as parents to the individual parents who are
involved in married, mother-father parenting. The point, rather, is that the
combination of male and female parents is likely to draw from the strengths of
both genders in ways that cannot occur with any combination of two men or two
women, and that this gendered, mother-father parenting model provides important
benefits to children. That this would be so is hardly surprising. Society has long
recognized that diversity in education brings a host of benefits to students. See,
e.g., Grutter v. Bollinger, 539 U.S. 306 (2003). If that is true in education, why
not in parenting? And as the Supreme Court has taught: [T]he two sexes are not
fungible; a community made up exclusively of one [sex] is different from a
community composed of both and [i]nherent differences between men and
women, we have come to appreciate, remain cause for celebration . . . . United
States v. Virginia, 518 U.S. 515, 533 (1996) (quoting Ballard v. United States, 329
U.S. 187, 193 (1946)) (internal quotation marks omitted). And, again, man-woman
45

marriage effectively teaches the norm and ideal of gender complementarity in
child-rearing, while genderless marriage counters them.
Plaintiffs do not and cannot negate these robustly supported legislative facts
regarding gender complementarity. In the face of this argument supportive of
man-woman marriage, its opponents revert to the notion that men and women are
interchangeable or, at the very least, that the law must not allow any official
recognition of differences between the two sexes. That notion makes sense only to
people who have accepted a particular theory of gender advanced by radical social
constructivists and that theorys logical extension into a legal principle that the
law can never classify on the basis of sex.
65
These are people at the extreme
constructionist end of the essentialist/constructionist spectrum. Adherents to the
radical social constructionist position, to a greater or lesser extent, take it as their
project to deconstruct the gendered differences between men and women
66
and
advance this project by advocating that the law not make gender-based distinctions
at all.
67

65
Regarding the information set forth in this paragraph, see generally SER 739
42.
66
See, e.g., Jonathan Culler, Literary Theory: A Very Short Introduction 97101
(1997); The Feminists: A Political Organization to Annihilate Sex Roles, in
Radical Feminism 368, 36869 (Anne Koedt et al. eds., 1973); Shulamith
Firestone, The Dialectic of Sex: The Case for Feminist Revolution 11 (1970).
67
See, e.g., Kate Millet, Sexual Politics 3336 (1977). Genderless marriage
advocates attempt to use radical social constructionist conclusions because, they
46

In making the Marriage Amendment part of their constitution, Nevadas
voters declined to buy into the radical social constructivists theory of gender.
Equally important, the Supreme Court has declined to accept it. See Virginia, 518
U.S. 515.
68
It would be bad constitutional law to do otherwise. See, e.g., Otis v.
Parker, 187 U.S. 606, 60809 (1903) (Justice Holmess cautioning against the
tendency of judges, consciously or unconsciously, overtly or covertly, to read
social theories into the constitution: Otherwise a constitution, instead of
embodying only relatively fundamental rules of right, as generally understood by
all English-speaking communities, would become the partisan of a particular set of
ethical or economical opinions . . . .).
c. The man-woman meaning in marriage minimizes fatherlessness in the lives of
children, a condition particularly challenging to childrens well-being generally.

In 2009, the White House announced that it was launching a national
conversation on fatherhood and personal responsibility. The conversation
commenced with an event celebrating five outstanding fathers. The President
explained:

argue, there is no defensible basis under equality jurisprudence for man-woman
marriage in light of the fact that there are no differences between men and
women that matter (or should matter) in the eyes of the law.
68
For analysis of the Supreme Courts refusal in United States v. Virginia to
accept the radical social constructivists theory of gender, see, for example,
Sunstein, supra note 31, at 76; Stewart, Judicial Redefinition, supra note 23, at 92
95.
47

[W]hen fathers are absentwhen they abandon their responsibility
to their kidswe know the damage that does to our families. Children
who grow up without a father are more likely to drop out of school
and wind up in prison. Theyre more likely to have substance abuse
problems, run away from home, and become teenage parents
themselves.
69

Emphasizing the positive, the President also said: We all know the difference that
responsible, committed fathers like these guys [the five outstanding fathers] can
make in the life of a child.
70

Extensive studies have affirmed that fathers are essential to the enterprise of
parenting.
71
And the costs of policies increasing the number of fatherless families
have proven to be very high.
72

69
Press Release, Office of the Press Secretary, The White House, President
Obama Launches National Conversation on Importance of Fatherhood and
Personal Responsibility (June 19, 2009), http://www.whitehouse.gov/the-press-
office/president-obama-launches-national-conversation-importance-fatherhood-
and-personal-r.
70
Id.
71
See, e.g., Popenoe, supra note 63; Blankenhorn, Fatherless, supra note 61;
Wendy D. Manning & Kathleen A. Lamb, Adolescent Well-Being in Cohabiting,
Married, and Single-Parent Families, 65 J. Marriage and Fam. 876 (2003); Elrini
Flouri & Ann Buchanan, The role of father involvement in childrens later mental
health, 26 J. Adolescence 63 (2003) (concluding [f]ather involvement at age 7
protected against psychological maladjustment in adolescents, even when
controlling for mother involvement).
72
See, e.g., note 71 supra; Gregory Ace et. al., The Moynihan Report Revisited, 6
Urban Institute 1 (2013), available at http://www.urban.org/UploadedPDF/
412839-The-Moynihan-Report-Revisited.pdf; Bruce J. Ellis et al., Does Father
Absence Place Daughters at Special Risk for Early Sexual Activity and Teenage
Pregnancy?, 74 Child Dev. 801 (2003).
48

The man-woman marriage institution teaches and honors the role of father
and prepares males to fulfill it. A genderless marriage regime, with its Parent A
and Parent B, eliminates from the law the office and role of father, teaching
instead that the gender of parents does not matter. Thus, under such a regime, the
law no longer can promote and valorize fatherhood or teach that fulfillment of its
duties is good for children generally.
73

* * * * * * * * * * * *

Man-woman marriage teaches the norms and ideals of a child knowing and
being reared by her mother and father, of gender complementarity in child-rearing,
and of responsible fatherhood. To the extent a society realizes those norms and
ideals, children generally do better, flourish more fully, and have better lives.
There is no mystery and should be no confusion about the objectives of Nevadas
Marriage Laws. Nevada is preserving the man-woman meaning in its marriage
institution to re-enforce in a powerful way those norms and ideals. Man-woman
marriage teaches and valorizes them, and genderless marriage necessarily does the
opposite. Thus, man-woman marriage maximizes the realization of those norms
and ideals, for the enduring benefit of children generally.

73
The dilemma of those who seek to promote fatherhood while at the same time
promoting genderless marriage is analyzed in Adam J. MacLeod, No Interest in
Fathers, Public Discourse, Jan. 14, 2014, http://www.thepublicdiscourse.com/2014
/01/11034/.
49

With full constitutional authority, a State may teach, by enshrining the man-
woman meaning, that marriage is and ought to be principally about what is good
for children generally rather than about what is good for adult desires and private
choices. Because Nevadas means and objectives are fully legitimate, highly
intelligent, and compelling, there is no constitutional flaw in its Marriage Laws.
Nor can the Marriage Laws constitutionality be rationally attacked by
reference to the children in same-sex couple households. Like most States, Nevada
engages in two large but different child-welfare endeavors. One, by preserving the
man-woman meaning in marriage, it seeks to maximize the number of children
down through the generations who know and are reared by mother and father, who
have the benefits of gender complementarity in their upbringing, and who are
spared the woes of fatherlessness. Two, in various ways (including with the DPA),
Nevada seeks to protect the present welfare of individual children found in varying
circumstances.
As to the second important endeavor, Nevadas laws, including the DPA,
provide to the children in same-sex couple households on an equal basis the same
financial and other material benefits that Nevadas various statutory programs
provide to children generally. Plaintiffs can point to no Nevada-administered
program that does otherwise, although they blame the Marriage Laws for
50

depriving children in same-sex couple households of access to federal benefits
afforded children in married households. That blame is misplaced, for the reasons
explained Section V.D. below. But that misplaced blame does set up perfectly the
wisdom of Nevadas choices with its two large but different child-welfare
endeavors. To maximize benefits to children in same-sex couple households
through its second endeavor, Nevada must (so Plaintiffs argue) abandon and undo
its first endeavorit must cease to use the man-woman marriage institution to
teach powerfully the norms and ideals of a child knowing and being reared by her
mother and father, of gender complementarity in child-rearing, and of responsible
fatherhood. Nevada must (so Plaintiffs argue) suppress that institution by
implementing a genderless marriage regime, which counters those norms and
ideals. Yet given the huge disparity in numbers between children connected to
same-sex couple households and all other children,
74
for Nevada to abandon and
undo its first endeavor is to minimize rather than maximize benefits to children
generallyand that is neither rational nor moral.

74
The most recent data indicates that about 125,000 same-sex couple households
in the United States have children present. Gary J. Gates, LGBT Parenting in the
United States, The Williams Institute, UCLA School of Law (Feb. 2013),
http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Parenting.pdf. In
contrast, nearly 25,000,000 households have a married mother and father, Jonathan
Vespa et. al., Americas Families and Living Arrangements: 2012, U.S. Census
Bureau, U.S. Dept. of Commerce (Aug. 2013), http://www.census.gov/prod/
2013pubs/ p20-570.pdf, while over 10,000,000 households with children have no
father present and over 3,000,000 have no mother present, id.
51

The same analysis applies with equal strength and validity to Plaintiffs
argument that the Fourteenth Amendment compels Nevada to abandon and undo
its first child-welfare endeavor so as to reduce dignitary harms, or stigma, to
children in same-sex couple households.
75
Because of the compelling importance
of the benefits sought by Nevadas first child-welfare endeavor for the largest
number of children possible, the Constitution does not require Nevada to abandon
that endeavor.
2. Man-woman marriage protects religious liberties.

Informed and thoughtful observers on both sides of the marriage issue agree
that imposition of a genderless marriage regime by force of law (especially
constitutional law) will materially interfere with, diminish, and otherwise injure
over time the religious liberties of religious organizations and people of faith
whose religious foundations support man-woman marriage and oppose genderless
marriage.
76
This acknowledgment of adverse impacts on religious liberties is

75
We address the legal flaws in Plaintiffs harms argument in Section V.E.
below.
76
See, e.g., 3 W. Cole Durham & Robert Smith, Religious Organizations and the
Law 14:20 to 14:30 (2013); Girgis, supra note 34, at 6264; compare Marc D.
Stern, Same-Sex Marriage and the Churches, in Same-Sex Marriage and Religious
Liberty: Emerging Conflicts 158 (Douglas Laycock et al. eds., 2008) with Chai
R. Feldblum, Moral Conflict and Conflicting Liberties, in Same-Sex Marriage and
Religious Liberty 12356.
52

reflected in the writings of genderless marriage advocates
77
and those neutral on
the marriage issue but concerned about preservation of religious liberties.
78
These
adverse impacts on religious liberties matter to Nevada and to our Nation to a very
great extent because their people, to a very great extent, adhere to religions firmly
opposed to genderless marriage. Thus, the potential for religious conflict is
enormous.
79

A genderless marriage regimes adverse impacts on the religious liberties of
churches include increased liability in private anti-discrimination lawsuits and a
range of government penalties such as exclusion from government facilities,
ineligibility for government contracts and licenses, and withdrawal of tax exempt
status.
80
The adverse impacts on the religious liberties of individuals include
government-authorized sanctionseither directly imposed by government or
resulting from private anti-discrimination lawsuitsfor heeding conscience and

77
E.g., Feldblum, supra note 76, at 12356.
78
E.g., Durham & Smith, supra note 76, 14:2014:23, 14:2514:30.
79
This reality is in sharp contrast to the reality of a small minority of religious
believersconcentrated in a relatively small part of the countrywhose religious
views once cast interracial man-woman marriage as wrong.
80
E.g., id. Specific, concrete examples of these conflicts are given in Thomas M.
Messner, The Heritage Foundation, Same-Sex Marriage and the Threat to
Religious Liberty (2008), http://www.heritage.org/research/reports/2008/10/same-
sex-marriage-and-the-threat-to-religious-liberty, and Ryan T. Anderson, Clashing
Claims, National Review Online, Aug. 23, 2013, http://www.nationalreview.com/
article/356539/clashing-claims-ryan-t-anderson#!.
53

declining to provide services connected to such activities as same-sex couple
weddings and lodging.
81

Nevadas same-sex couples, including the Plaintiffs, have never had a
right to marry in Nevada, that is, to have the law impose on the State a
genderless marriage regime.
82
Accordingly, this is not a case where the judicial
task is to balance the religious liberties of people and communities of faith, on one
hand, against, on the other hand, the right of same-sex couples to marry. The
issue, rather, is whether Nevada has sufficiently good reasons for preserving man-
woman marriage. If it does, then same-sex couples do not have a right to marry in
the first place. In such a case, there is simply no balancing between competing
rights to be done because there are no competing rights. So what matters is the
demonstration of the robust legislative fact that preserving man-woman marriage
protects religious liberties against the high likelihood of diminution and loss. That
in itself constitutes a sufficiently good reason for Nevadas choice.
Plaintiffs argue that a genderless marriage regime will not adversely impact
religious liberties because no religion will be required to change its religious
policies or practices with regard to same-sex couples, and no religious officiant
will be required to solemnize a marriage in contravention of his or her religious

81
See note 80 supra.
82
See, e.g., Nev. Rev. Stat. 122.020.
54

beliefs[.] Opening Br. at 85 (quoting In re Marriage Cases, 183 P.3d 384, 451
52 (Cal. 2008)). But to say that a genderless marriage regime will not adversely
impact religious practice A or B is not proof that it will not adversely impact
religious practice C or D. The Plaintiffs have been silent about the adverse impacts
on the religious liberties that we identified with specificity in the district court and
again hereadverse impacts that even vigorous but intellectually honest
genderless marriage proponents have frankly acknowledged as being highly likely.
So it can hardly be said that the Plaintiffs have demonstrated a contrary legislative
fact. They certainly have not negated the robustly supported legislative fact
pertaining to religious liberties set forth here.
83

* * * * * * * * * *
When Nevadas citizen-voters went to the polls in 2000 and 2002, they had
to make a choice about the norms and ideals of a child knowing and being raised
by her mother and father and of experiencing both gender complementarity and
responsible fatherhood and the further social ideal of guarding against the
diminution and loss of religious liberties and privileges of conscience. Genderless
marriage proponents argued, as they always do, that as a matter of fact none of

83
Plaintiffs also rely on the religious liberties analyses of the California,
Connecticut, and Iowa Supreme Courts in their respective genderless marriage
cases, Opening Br. at 85, without acknowledging or otherwise coming to grips
with the demonstrated material defects in those analyses. See Stewart,
Fundamental Premises, supra note 36, at 26374.
55

these benefits would be adversely impacted or diminished, that letting Adam and
Steve marry would not hurt any individuals marriage or marriage in general, that
there would be no harm, that there would be no downside, that there would be no
social, cultural, or political price to be paid. Those were their legislative facts, and
Nevadas citizen-voters did not buy them. They chose, as was their right, to give
credence to the contrary and robustly supported legislative facts, those
demonstrated above.
Now genderless marriage proponents are asking this Court to ignore or
otherwise dismiss those democratically chosen legislative facts, accept contrary
legislative facts (in the few places where some are presented), and on that basis say
that Nevada does not have sufficiently good reasons to preserve the man-woman
marriage institution. But settled federal law does not countenance such a judicial
course. In these circumstances, this Court must defer to the legislative facts chosen
by the authorized government decision-makersNevadas citizen-voters
themselves. Those legislative facts all point to man-woman marriage as
maximizing valuable benefitsto children, to adults, and to society generally.
56

C. Plaintiffs constricted view of what marriage is does not negate the
legislative facts showing the institution to be much broader and deeper in its
nature and purposes.

What we will call the broad description of marriage encompasses the social
realities set forth above: the understanding that the institution of marriage was
created for the purpose of channeling heterosexual intercourse into a structure that
supports child rearing; that marriage is essentially the solemnizing of a
comprehensive, exclusive, permanent union that is intrinsically ordered to
producing new life, even if it does not always do so; and that marriage has been
viewed as an institution . . . inextricably linked to procreation and biological
kinship.
84
The broad description also encompasses the understanding that
marriage's social goods include love and friendship, security for adults and their
children, economic protection, and public affirmation of commitment,
85
in
addition to those described above.
In contrast to the broad description of marriage, the narrow view underlying
all essential arguments for genderless marriage limits its description of the goods
of marriage to love and friendship, security for adults and their children, economic

84
United States v. Windsor, 133 S. Ct. 2675, 2718 (2013) (Alito, J., dissenting)
(citations omitted). For a more detailed explanation of the broad view of marriage,
see Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 99596 (Mass. 2003)
(Cordy, J., dissenting), and Girgis, supra note 34, at 2336.
85
Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and
Responsibility 6 (2006).
57

protection, and public affirmation of commitment. This constricted description
results from the narrow views adherence to what scholars refer to as the close
personal relationship model of marriage, where marriage is seen primarily as a
private relationship between two people, the primary purpose of which is to satisfy
the adults who enter it. Marriage . . . and children are not really connected.
86

This view is of a relationship that has been stripped of any goal beyond the
intrinsic emotional, psychological, or sexual satisfaction which the relationship
currently brings to the [two adult] individuals involved.
87
The narrow view
tend[s] to strip marriage of the features that reflect its status and importance as a
social institution.
88
The narrow view insists that marriage is no more than what
the narrow view describes.
89

86
SER 144.
87
SER 145. See Scott Yenor, Family Politics: The Idea of Marriage in Modern
Political Thought 5 (2011):

The more advocates of autonomy emphasize individual choice, the
more marriage and family life are disabled from achieving serious
public purposes.

. . . Modern advocates of autonomy and personal independence
distort the satisfactions of marriage into personal satisfactions. They
underestimate how genuinely satisfying marital love creates mutual
dependence that limits human autonomy and fail to see how marriage
and family life are satisfying because they involve this love and
dependence.
88
SER 144.
89
See Stewart, Marriage Facts, supra note 9, at 337.
58

The contest between the broad description and the narrow view is a contest
between competing legislative facts, with those supporting the broad description
clearly being the stronger.
90
Only careless, popularizing scholarson whom
Plaintiffs rightly do not relyclaim that the narrow view, a relatively recent
phenomenon in our society, has overcome and suppressed the broad view, with its
emphasis on children, family duties, and mutual dependence.
91

That the broad description of marriage is a robustly supported legislative fact
matters very much in resolving the marriage issue because the narrow vision
underlies every argument the proponents of genderless marriage make.
92
These
arguments invariably ignore the broad description (while at the same time
generally obscuring their essential reliance on the narrow vision as such) because
fair acknowledgement of the broad description is fatal to those arguments.
93

The Plaintiffs one serious effort to establish the factual accuracy of the
narrow view and thereby negate the broad description falls far short. That effort is

90
See, e.g., Stewart, Marriage Facts, supra note 9, at 350.
91
See Stephanie Coontz, Marriage, A History: From Obedience to Intimacy, or
How Love Conquered Marriage (2005). Critics from across the spectrum have
questioned Coontzs work. See, e.g., Alan Wolfe, The Malleable Estate: Is
marriage more joyful than ever?, Slate, May 17, 2005, http://www.slate.com/
id/2118816; Blankenhorn, Future, supra note 34, at 236, 23940 (Coontz has
made a career out of arguing that her own philosophical preferences and the laws
of historical inevitability are one and the same.).
92
See Stewart, Fundamental Premises, supra note 36, at 197211.
93
See id.
59

the testimony of Prof. Nancy Cott. Although Prof. Cott lists aspects of marriage
common to both the narrow and the broad descriptions, she does not aver that
contemporary marriage is limited to those aspects or that the additional aspects of
marriage ignored by the narrow view but captured by the broad description are
factually false. This is particularly telling because the additional aspects were set
forth in considerable detail in our district court filings and in other relevant
literature before Prof. Cott prepared her declaration. Furthermore, although Prof.
Cott states that marriage is an evolving and changing institution, she does not
assert that the changes have eliminated the additional aspects of marriage included
in the broad description. Her statements set forth only now-abandoned institutional
meanings and practices other than those additional aspects. The most that Prof.
Cott says regarding the validity of those additional aspects is that the exclusion of
same-sex couples from equal marriage rights stands at odds with the direction of
historical change in marriage in the United States.
94
That statement carefully
avoids saying that the historical change has overtaken and eliminated the broad
descriptions additional aspects of marriage. Those aspects are continuing,
valuable, and important components of contemporary American marriageand
fully sustain man-woman marriages constitutionality.

94
ER 264, 281.
60

One other aspect of the Plaintiffs treatment of our account of what marriage
is merits comment. Plaintiffs label our account as a baseless private view that
marriage equality tarnishes the institution of marriage. Opening Br. at 16. What
is meant by private view? It probably means nothing more than the view held
by people who disagree with us. There is certainly nothing private in the broad
description of marriage or in the literature of the new institutionalism or about the
marriage institution itself. There are no private social institutions because social
institutions are constituted by and only by webs of widely shared public meanings,
and when those public meanings are no longer sufficiently widely shared, the
institutions cease. More importantly, it is the grossest falsehood to label as
baseless the careful account given here of the adverse impacts on marriages
valuable social benefits likely resulting from legal suppression of the man-woman
meaning at the core of the institution. The hurling of this falsehood is an act of
desperation. The Plaintiffs have known about the Coalitions intended defense of
the Marriage Lawsthe same defense set forth in this Section Ifor a long time.
The Coalitions Motion to Intervene was the second substantive filing in this action
(right after the Complaint), Dist. Ct. Dkt. 30, and it set forth the defense in detail.
Id. at 711. And even much earlier, in November 2003, three highly regarded
members of the Massachusetts Supreme Judicial Court adhered to the social
61

institutional defense of man-woman marriage.
95
Yet, with all that time to come up
with a responsible counter to that defense, the Plaintiffs, their five experts, and
their seventeen amici have not been able to do so. They have simply failed to
engage the social institutional argument for man-woman marriage in any
intellectually rigorous and honest way. It is a startling and telling phenomenon,
one underscored by the hurling of the baseless falsehood.
II. WHAT MARRIAGE OUGHT TO BE IS A DECISION THAT MUST BE LEFT TO
DEMOCRATIC PROCESSES, ESPECIALLY WHEN THOSE PROCESSES ARE OPERATING
IN A FAIR AND OPEN WAY AND WHERE GENDERLESS MARRIAGE PROPONENTS ARE
EFFECTIVELY DEPLOYING VERY CONSIDERABLE POLITICAL POWER.

Plaintiffs and other genderless marriage advocates want marriage changed
from what it is to something different so as to make it helpful to their personal,
social, and economic aspirations and status. The argument is that marriage ought
to have the core meaning of the union of two persons without regard to gender so
as to improve and advance the situation of gay men and lesbians and any children
attached to their relationships. The political question (for nearly everyone) is not
whether such improvement and advancement is a good objective in the abstract; it
is. The real political question is what is the cost of such a profound redefinition of
marriage? Genderless marriage advocates say there is none, there is no harm or
downside, only upside. The majority of the voters in Nevada and in a large

95
Goodridge v. Dept Pub. Health, 798 N.E.2d 941, 9831005 (Mass. 2003)
(Cordy, J., dissenting). Justices Spina and Sosman joined this dissent.
62

majority of the other States have so far concluded otherwise; in previous elections
they chose, as was their right, to give credence to the contrary legislative facts set
forth in the previous Section, which point to a quite heavy social cost indeed.
96

It is definitely for democratic processes, not the courts, to answer this
question of what marriage ought to be and to resolve the social-cost issue. E.g.,
Washington v. Glucksberg, 521 U.S. 702, 735 (1997) (Throughout the Nation,
Americans are engaged in an earnest and profound debate about the morality,
legality, and practicality of physician-assisted suicide. Our holding permits this
debate to continue, as it should in a democratic society.). This approach of
deferring to democratic processes is especially compelling when, as now, those
processes are operating in a fair and open way and where, as in Nevada and
elsewhere, genderless marriage proponents are effectively deploying very
considerable political power. We previously described the political situation in
Nevada, where the State legislature has started the process to repeal the Marriage
Amendment, and in Hawaii, where the legislature voted to redefine marriage as

96
The evidence suggests that those whose own lives and neighborhoods reflect
the practices and norms of the close personal relationship model of marriage, the
narrow view, are generally supportive politically of genderless marriage, while
those whose own lives and neighborhoods reflect the practices and norms of the
broad description of marriage generally are not. See Stewart, Eliding, supra note
23, at 534.
63

the union of two persons without regard to gender.
97
We also note that, while this
Answering Brief was being written, the Illinois legislature and governor changed
the legal meaning of marriage in that State to the union of two persons without
regard to gender.
98

It is right that the large public debate about marriagewhat it is and what it
ought to bebe conducted and resolved through the free, open, democratic
process. Nevadans are re-engaging in that debate, and just as before, they will
resolve it through their free, open, democratic process, if the judges of this Court

97
For an overview of matters in Hawaii, see, for example, Alan Duke, Hawaii to
become 16th state to legalize same-sex marriage, CNN.com, Nov. 13, 2013,
http://www.cnn.com/2013/11/12/us/hawaii-same-sex-marriage/ (summarizing);
House hearing on same sex marriage resumes Saturday, khon2.com, Nov. 1, 2013,
http://www.khon2.com/news/house-hearing-on-same-sex-marriage-resumes-
saturday (highlighting the extensive testimony hearing); Malia Zimmerman,
Experts say Hawaiis gay marriage bill worst at protecting religious freedom,
Hawaii Reporter, Oct. 30, 2013, http://www.hawaiireporter.com/experts-say-
hawaiis-gay-marriage-bill-worst-at-protecting-religious-freedom/123
(summarizing the very real religious liberty concerns presented by those who
support and oppose redefining marriage).
Regarding Nevada, see Sean Whaley, Nevada Legislature advances gay
marriage resolution, Las Vegas Review Journal, May 23, 2013,
http://www.reviewjournal.com/news/nevada-legislature/nevada-legislature-
advances-gay-marriage-resolution; Press Release, Retail Association of Nevada,
RAN Poll Shows Nevadans Optimistic about States Economy, but Recovery Not
Felt by Most Households (Oct. 2013), http://www.rannv.org/documents/23/Poll
Release-RANOct2013Final.pdf (reporting on opinion poll which found 57% of
Nevadans support repealing Nevadas Marriage Amendment).
98
See Monique Garcia, Signed and sealed: Illinois 16th state to legalize gay
marriage, Chicago Tribune, Nov. 21, 2013, http://www.chicagotribune.com/news/
chi-illinois-gay-marriage-bill-signing-20131120,0,4464600.story.
64

resist the siren song to resolve it first by imposing on Nevada their personal views
of the good.
III. NEVADANS HAVE RIGHTLY VALUED THE INTERESTS SUSTAINING NEVADAS
MARRIAGE LAWS.

Section I above sets forth the robust legislative facts demonstrating that the
man-woman meaning at the core of our marriage institution provides valuable
social benefits (or, in legal parlance, advances legitimate societal interests); that a
genderless marriage regime will likely jeopardize, diminish, and even eliminate
those benefits over time; and that, by using the force of law to assure the
continuing institutionalization of the man-woman meaning, the Marriage Laws
protect those legitimate societal interests. This Section addresses more fully the
concept of valuable.
Different people place different values on various social benefits. For
example, someone living in San Francisco, far and away this Nations most
childless large city,
99
and imbued with the cultural assumptions material to that
citys status may well place low value on man-woman marriages benefits
pertaining to reproduction and child-rearing. Similarly, a single woman not
desiring a husband but desiring a child and willing to use sperm from an
anonymous donor will probably place little or no value on the childs interest in

99
See Stewart, Eliding, supra note 23, at 534 n.186.
65

knowing and being reared by both his mother and father. And, someone not
engaged himself in the exercise of religion and distrustful of those who are may
place little value on the religious liberties at stake here. As a final example,
someone who has bought in wholly to the radical social constructionist theory of
gender probably will not place any value on the benefits of gender
complementarity in child-rearing. To the extent anyone personally devalues man-
woman marriages benefits, he or she will probably also devalue societys efforts
to preserve and perpetuate that distinct institution.
These personal valuations of man-woman marriages unique social benefits
no doubt arise in large part from what John Rawls called peoples comprehensive
doctrines.
100
The Supreme Court has not written his notion of public reason
into constitutional jurisprudence, and we do not advocate for that. We raise Rawls
only to frame this issue: In assessing whether there are sufficiently good reasons
to sustain Nevadas Marriage Laws against constitutional attack, how do the judges
of this Court value the societal interests those laws protect? Certainly it should not
be on the basis of their respective comprehensive doctrines. Judging on the basis
of ones own comprehensive doctrines leads, in operation, to the kind of

100
See John Rawls, Political Liberalism 13 (1995); see also John Rawls, The Idea
of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997).
66

problematic judging seen in Dred Scott,
101
in Lochner
102
and its progeny, and in
this Courts en banc decision in the Washington assisted-suicide case.
103

Judicial valuation of the societal interests that laws are designed to protect
should be based on both objectively reasonable considerations and due deference
to the valuations emerging from democratic processes. Applying that answer leads
to a high valuation of the benefits materially and even uniquely provided by the
man-woman marriage institution and therefore protected and advanced by
Nevadas Marriage Laws. Society has a compelling interest in its own
perpetuation, both biologically and culturally. The man-woman marriage
institution is the best device humankind has yet devised to assure, to the greatest
extent possible given human nature, the orderly reproduction of society. Society
has a compelling interest, based in a universally shared public morality, both to
assure that the children, the weakest and most vulnerable among it, are reared in
the optimal mode, again to the greatest extent possible given human nature, and to
vindicate the childs interest in knowing and being reared by her mother and father.

101
Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857), superseded by U.S.
Const. amend. XIII, 1 & 2 and U.S. Const. amend. XIV, 1.
102
Lochner v. New York, 198 U.S. 45 (1905), overruled in part by Ferguson v.
Skrupa, 372 U.S. 726 (1963).
103
Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc),
revd, Washington v. Glucksberg, 521 U.S. 702 (1997). We reference this case
with due respect, to remind that the judges of this Court, like all other judges, are
not entirely immune to the temptation to substitute their own value judgments for
those made democratically.
67

And if the first part of the First Amendment teaches anything, it is that our society
and our Constitution value highly religious liberties qua religious liberties, thereby
making their protection against the likely depredations of a genderless marriage
regime both important and valuable.
IV. BAKER V. NELSON BINDS THIS COURT TO RULE AGAINST THE PLAINTIFFS.
On this issue, the Coalition adopts the analysis of the First Circuit in its
DOMA case
104
and the portions of the Governors and Clerk/Recorder Glovers
respective Answering Briefs consistent with that analysis. We add just two
observations.
One, the Supreme Courts resolution of Baker v. Nelson was fully consistent
with, and is rightly seen as a straightforward application of, our constitutional
jurisprudence on the right, power, and sovereignty of the states to define marriage
within their respective borders. That jurisprudence stretches from the beginning of
the Republic right through Windsor (as we show in the following Section).
Two, in arguing against application of the Baker v. Nelson judgment here,
Plaintiffs quote Justice Ginsburgs comments made during oral argument in
Hollingsworth to the lawyer arguing in favor of Proposition 8. Opening Br. at 96
97. In aid of his position, that lawyer had invoked Baker v. Nelson. Justice

104
Massachusetts v. U.S. Dept of Health & Human Servs., 682 F.3d 1, 8 (1st Cir.
2012), cert. denied, 133 S. Ct. 2884 (U.S. 2013).
68

Ginsburg expressed some thoughts on the precedential value of that decision in the
Supreme Court. In the Supreme Court is the point Plaintiffs miss. A Supreme
Court dismissal for want of a substantial federal question is a ruling on the merits
binding on the lower federal courts, e.g., Hicks v. Miranda, 422 U.S. 332, 34345
(1975), but with a lesser precedential value at the Supreme Court itself, e.g., Tully
v. Griffin, Inc., 429 U.S. 68, 74 (1976) (a summary disposition of an appeal is not
here of the same precedential value as would be an opinion of this Court treating
the question on the merits,) (quoting Edelman v. Jordan, 415 U.S. 651, 671
(1974) (emphasis added)). Accordingly, Justice Ginsburgs comments add nothing
to this Courts analysis of the extent to which Baker v. Nelson binds this Court.
That extent, of course, is completely.
V. WI NDSOR SUPPORTS NEVADAS MARRIAGE LAWS.
We read Windsor in its entirety and as part and parcel of and consistent with
the totality of Supreme Court jurisprudence in this area. Read in its entirety and
not as an aberration, Windsor supports Nevadas Marriage Laws.
A. Windsor reviewed a law materially different in motivation, authority,
operation, and consequences from Nevadas Marriage Laws.

To correctly understand the reason that the Supreme Court found the line-
drawing in Windsor constitutionally offensive, it is of paramount importance to
69

correctly identify the classes created by DOMA
105
and the consequences of its line-
drawing. The line that DOMA drew was between man-woman couples validly
married under the laws of a State and same-sex couples also validly married under
those same laws. Although when DOMA was passed in 1996 no State authorized
same-sex couples to marry, it was clearly understood that, if and when that
happened, DOMA would operate to create those two classes and to treat the
married same-sex couples as not married for any federal purpose. As to the
resulting harms to those couples, Windsor is fairly read as identifying two
categories: economic and dignitary.
The relevant and extraordinary feature of DOMAs line-drawing was that
the federal government, with only very minor and specific exceptions, had never
before made a definition of marriage but rather had always deferred to the States; if
a State said a couple was married, the federal government treated the couple as
married. Windsor deemed this highly unusual feature offensive in two closely
related ways. First, it impinged on the authority of the States to regulate and define
domestic relations, principally marriage, a power that under our federalism has
always been pre-eminently, indeed, virtually exclusively, the prerogative of the
States. Second, the line-drawing coupled with the unusual departure from

105
All references here to DOMA are limited to section 3 of the federal Defense
of Marriage Act, 110 Stat. 2419 (1996), which amended the Dictionary Act at 1
U.S.C. 7.
70

deference to the States traditional authority over marriage suggested that DOMA
was targeting same-sex couples for adverse treatment more than it was advancing
the various fiscal and uniformity interests proffered in the statutes defense.
The States reserved power to regulate marriage, as an aspect of our
federalism, without question played a central role in Windsors holding that
DOMA is unconstitutional. Windsor explained that [t]he states, at the time of the
adoption of the Constitution, possessed full power over the subject of marriage and
divorce . . . [and] the Constitution delegated no authority to the Government of the
United States on the subject of marriage and divorce. United States v. Windsor,
133 S. Ct. 2675, 2691 (2013) (quoting Haddock v. Haddock, 201 U.S. 562, 575
(1906)) (emphasis added). Windsor reaffirmed that when the Constitution was
adopted the common understanding was that the domestic relations of husband and
wife and parent and child were matters reserved to the States. Id. at 2691
(quoting Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 38384 (1930)) (emphasis
added). Windsor emphasized the States historic and essential authority to define
the marital relation, id. at 2692, on the understanding that [t]he definition of
marriage is the foundation of the States broader authority to regulate the subject of
domestic relations with respect to the [p]rotection of offspring, property interests,
and the enforcement of marital responsibilities[,] id. at 2691 (quoting Williams v.
71

North Carolina, 317 U.S. 287, 298 (1942)). And the Court noted that [c]onsistent
with this allocation of authority, the Federal Government, through our history, has
deferred to state-law policy decisions with respect to domestic relations. Id.
106

Specifically, the Court held that New Yorks recognition of same-sex marriage was
without doubt a proper exercise of its sovereign authority within our federal
system, all in the way that the Framers of the Constitution intended. Id. at 2692.
Congress went astray, the Court held, by interfer[ing] with the equal dignity of
same-sex marriages, a dignity conferred by the States in the exercise of their
sovereign power. Id. at 2693. Given this reasoning, it is undeniable that the
Supreme Courts judgment in Windsor is based on federalism. Id. at 2697
(Roberts, C.J., dissenting).
Windsors thorough discussion of both DOMAs infringement on the States
sovereignty over marriage and the economic and dignitary harms resulting from
that infringement illuminate the decisions holdings. To the extent that the Courts
decision to strike down DOMA is based on Fifth Amendment substantive due
process jurisprudence, its holding is that a couple (probably any couple, whether

106
Windsor also made clear the independence of one State, in making its marriage
decisions, relative to all other States. The decision states that diversity among the
States regarding same-sex marriage is consistent with the the long-established
precept that the incidents, benefits, and obligations of marriage . . . may vary,
subject to constitutional guarantees, from one State to the next. 133 S. Ct. at
2692.
72

man-woman or same-sex) bears a right (with the federal government bearing the
corresponding duty) to federal recognition of the privileged marriage status
conferred on the couple by a State in the exercise of its sovereign power in the area
of domestic relations. To the extent that the Courts decision to strike down
DOMA is based on the equal protection component of the Fifth Amendments due
process clause, the holding is that the governmental fiscal and uniformity interests
supposedly advanced by the creation of the disfavored class are not sufficiently
good reasons for that creation in light of two realities: one, that creation amounted
to an extraordinary, unprecedented, and affirmative federal infringement on the
States sovereign power over marriage; two, that infringement suggested a
targeting of the disfavored class more than the advancement of legitimate interests.
The Plaintiffs ignore these central aspects of Windsor. Consequently, their
misreadings and misuses of Windsor are many, and we counter those in the
following sections.
B. Plaintiffs wrongly ask this Court to make the same mistake that Congress
made with DOMA and that Windsor corrected.

The Plaintiffs challenge to Nevadas definition of marriage invites this
Court to make the same error Congress committed in enacting DOMAby
creating a federal intrusion on state power with its resulting disrupt[ion] [to] the
federal balance. Id. at 2692. Windsor affirms that Nevadas laws defining
73

marriage deserve this Courts respect and deference, no less than New Yorks.
Like New York, Nevada adopted its definition of marriage [a]fter a statewide
deliberative process that enabled its citizens to discuss and weigh arguments for
and against same sex marriage, and its laws reflect the communitys considered
perspective on the historical roots of the institution of marriage. Id. at 2689,
269293. That Nevada chose to keep and preserve the man-woman definition of
marriage, while New York decided to adopt a genderless marriage regime, does
not detract from the validity of Nevadas choice. Windsor reaffirms the long-
established precept that the incidents, benefits, and obligations of marriage . . . may
vary, subject to constitutional guarantees, from one State to the next. Id. at 2692.
Singling out Nevadas marriage laws for less respect or deference than the
Supreme Court gave New Yorks laws would contradict that Courts endorsement
of nationwide diversity on the States consideration of genderless marriage and
violate the fundamental principle of equal sovereignty among the States.
Shelby Cnty., Alabama v. Holder, 133 S. Ct. 2612, 2623 (2013) (quoting Northwest
Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)).
In brief, fundamental principles of federalism reserve for Nevada the
sovereign authority to define and regulate marriage. A judicial declaration
nullifying Nevadas definition of marriage would disrupt the federal balance, just
74

as DOMA did, by interjecting federal power into an area of law recognized as
uniquely belonging to State authority.
C. The Plaintiffs wrongly equate DOMAs discrimination found
unconstitutional in Windsor with Nevadas profoundly different decision to
preserve the man-woman marriage institution.

In the exercise of its sovereign authority, New York elected to experiment
with a genderless marriage regime. That meant that it conferred equal marital
status on all couples it deemed married, including the couple of which the Windsor
plaintiff was a part. The federal government through DOMA, however, created
two classes of married New York couples by treating some of themsame-sex
couplesas not married despite New Yorks authoritative pronouncement to the
contrary. Windsor held unconstitutional the federal creation of those two classes of
married couples and their resulting disparate treatment under federal law.
Plaintiffs seek to cast what Windsor held to be unconstitutional as any
governmental decision about marriage that distinguishes between man-woman
couples and same-sex couples. But there is no justification for such a
characterization. Windsor itself said:
The federal statute is invalid, for no legitimate purpose overcomes the
purpose and effect to disparage and to injure those whom the State, by
its marriage laws, sought to protect in personhood and dignity. By
seeking to displace this protection and treating those persons as living
in marriages less respected than others, the federal statute is in
75

violation of the Fifth Amendment. This opinion and its holding are
confined to those lawful marriages.

133 S. Ct. at 2696.
Further, large and compelling differences exist between DOMAs decision
regarding New York married couples (what Windsor struck down) and Nevadas
decision to preserve man-woman marriage (what Windsor supports). First, and
most obviously, Nevada exercised, just as New York did, its sovereign powers
over the marriage institution within its borders, see, e.g., Sosna v. Iowa, 419 U.S.
393, 404 (1975) ([D]omestic relations [is] an area that has long been regarded as
a virtually exclusive province of the States.), whereas the federal government with
DOMA acted without delegated authority because the Constitution delegated no
authority to the Government of the United States on the subject of marriage and
divorce, Windsor, 133 S. Ct. at 2691(quoting Haddock, 201 U.S. at 575)
(emphasis added).
Second, Nevada decided to preserve the man-woman marriage institution.
Because of the very nature of that institution, Nevadas decision is far different, in
a profoundly substantive way, from the federal governments decision in DOMA.
The federal government had no effective or constitutional power to preserve the
institution in New York exactly because that State had already used its sovereign
powers to mandate a genderless marriage regime and thereby de-institutionalize
76

over time man-woman marriage. But Nevada has both effective and constitutional
power to preserve the man-woman marriage institution and has chosen to use it.
As Windsor pointed out in the language just quoted, DOMA had no legitimate
purpose in infringing on New Yorks sovereign power over marriage in that State
and on the marital status of those whom that State authorized and deemed to be
married. But Nevadas project of preserving the man-woman marriage institution
is far different from the DOMA project and serves powerful legitimate purposes.
Those purposes, stated most succinctly, are to perpetuate the valuable social
benefits materially provided by the man-woman marriage institution and likely to
be lost if the law suppresses the man-woman meaning at the core of and
constitutive of the institution. We have demonstrated those benefits and their
jeopardy in Section I above.
Yes, Nevada made a choice different from New Yorks choice, but the
legitimate purposes and interests to be served by Nevadas choice are at least as
powerful and valid as those New York thinks it is advancing and, in the judgment
of Nevadas citizens, will be most beneficial to marriage, to generations of children
yet to come, and to society generally. Most importantly for present purposes,
Windsor did not enshrine in the Constitution New Yorks choice any more than it
did that for Nevadas choice; rather, Windsor protected our federal balance by
77

striking down DOMAs unauthorized and unjustified interference with New
Yorks choice. Especially in light of Windsor, this Court should reject the
Plaintiffs importuning that this Court make its own DOMA-like interference with
Nevadas choice.
D. The Plaintiffs wrongly read Windsor as recognizing a free-standing
substantive due process right to equal dignity that requires judicial
imposition of a genderless marriage regime.

Plaintiffs argue that judicial imposition of a genderless marriage regime is
constitutionally required to vindicate the right of same-sex couples and the children
connected to their relationships to equal dignity because perpetuation of the
man-woman marriage institution violates that right. Opening Br. at 3848.
Plaintiffs purport to derive this so-called right from Windsor. But this is a clear
misreading. The Supreme Court saw this: New Yorks genderless marriage
regime confers an equal marital status on all couples that State authorizes and
deems to be married, whether man-woman couples or same-sex couples. That
status confers benefits and advances interests, including economic breaks and
heightened dignity or social standing. Because the marriage status is equal for all
New Yorkers who enjoy it, so too is the dignity conferred by that status. This
equal dignity is thus a creation of the State of New York, and, indeed, its
conferral and enjoyment no doubt constitute one of the reasons that State elected to
78

go the genderless marriage route. But this equal dignity is not also a creation of
the federal constitution. What is a creation of the federal constitution is our
federalism and the equal protection right against harm-inflicting classifications
made without sufficiently good reasons. Because DOMA inflicted harm on
married New York same-sex couples by diminishing, with no legitimate
purpose, their State-conferred equal dignity in marriage, Windsor vindicated the
federal constitutional interests conjoined by the facts of this case, our federalism
and equal protection of the laws.
But Windsor certainly did not create a free-standing substantive due process
right to equal dignity for people generally or to equal dignity for gay men and
lesbians or to equal dignity for same-sex couples relative to marriage. Nothing in
the decision sustains the notion that it did such a thing. Much in the decision
defeats that notion, including the express language limiting the holding to a
situation where federal legislation operates to injure those whom the State, by its
marriage laws, sought to protect in personhood and dignity and thereby is
operating to displace this [State-conferred] protection and treating those persons
as living in marriages less respected than others . . . . This opinion and its holding
are confined to those lawful marriages. 133 S. Ct. at 2696. Beyond the decision
itself is the powerful reality that the Supreme Court has not read dignity or
79

equal dignity into our body of constitutional law as either a free-standing right or
a value or even an interpretive guidedespite (or because of) efforts by its
counterparts in other countries to do that.
107
A right to equal dignity has no
inherent boundaries or limitations and thus, if judicially recognized, must become
nothing other than a powerful machine for imposition of judicial notions of the
good and thereby for material constriction of the realms of national life governed
by democratic processes.
108

E. Plaintiffs wrongly read Windsor as basing a right to genderless marriage
on harm to same-sex couples and the children connected to their
relationships.

Plaintiffs devote much of their Opening Brief to discussion of the harms
experienced by same-sex couples and the children connected to them as a
consequence of the absence of a genderless marriage regime. Opening Br. at 17
29. Those harms are said to include harms (i) to social status and a sense of self-
worth (that is, to a dignity interest); (ii) to practical or administrative interests;
and (iii) to the absence of federal benefits, primarily of an economic nature,
accorded married people. (Because of Nevadas DPA, there is no loss of access to
State economic benefits accorded married people.) Lodged within this discussion
of harms are the related notions that these harms (i) give rise to a fundamental

107
See Stewart, Judicial Redefinition, supra note 23, at 10019.
108
See id.
80

substantive due process right to a genderless marriage regime, with the resulting
heavier burden on the State to justify its interference with this supposed right,
and (ii) result in a heightened level of judicial scrutiny of the Plaintiffs equal
protection claims. These notions are wrong.
Consistent with well-settled constitutional jurisprudence, Windsor never
suggests that the extent of resulting harm somehow determines the recognition or
not of a fundamental substantive due process right. If an interest does not
otherwise qualify as a fundamental right, or protected liberty interest, it does not
qualify whether harm to the interest is great or little. If there is real and remediable
harm to a protected liberty interest, whether great or little, the law will vindicate
the interest.
The same holds true in the equal protection context. The States reasons for
a classification are adjudged sufficiently good or not independently of the extent of
harm to the disfavored class, except where the classification impinges on a
fundamental right such as freedom of speech. Dandridge v. Williams, 397 U.S.
471 (1970), illustrates the correct and limited role of harm in equal protection
jurisprudence. Maryland put a cap on welfare payments so that large impoverished
families received less than they needed, whereas smaller impoverished families
were not so harmed. Id. at 47273. The Supreme Court was not at all callous
81

towards the large families harsh conditions but nevertheless held that the
classification must be subjected to rational basis review.
To be sure, the cases cited, and many others enunciating this
fundamental standard [of rational basis review] under the Equal
Protection Clause, have in the main involved state regulation of
business or industry. The administration of public welfare assistance,
by contrast, involves the most basic economic needs of impoverished
human beings. We recognize the dramatically real factual difference
between the cited cases and this one, but we can find no basis for
applying a different constitutional standard. . . . [I]t is a standard that
is true to the principle that the Fourteenth Amendment gives the
federal courts no power to impose upon the States their views of what
constitutes wise economic or social policy.

Id. at 48586 (citations and footnotes omitted).
109

In substantive due process jurisprudence, the threshold question is whether
the right asserted by the plaintiff is a fundamental right guaranteed by the
Fourteenth (or Fifth) Amendments due process clause. In answering this first
question, it is the nature of the interest asserted, not the extent of the harm, that
matters. This important principle first became clear in procedural due process
cases. E.g., Bd. of Regents v. Roth, 408 U.S. 564, 57071 (1972) ([T]o determine
whether due process requirements apply in the first place, we must look not to the
weight but to the nature of the interest at stake.). It is now equally clear in
substantive due process cases. Thus, in United States v. Juvenile Male, 670 F.3d

109
Dandridge v. Williams itself explains the First Amendment exception to the
general rule that the extent of harm does not alter the equal protection equation.
397 U.S. 471, 484 (1970).
82

999 (9th Cir. 2012), certain juveniles claimed a substantive due process right not to
be registered as sex offenders because the resulting harms were grievous,
amounting to an onerous lifetime probation. Id. at 1011. But this Court gave no
role to that harm in deciding whether to recognize the asserted right; it held against
the claim of fundamental right and applied rational basis review. Id. at 101213.
This Courts approach was consistent with that of the Supreme Court in
Washington v. Glucksberg, 521 U.S. 702 (1997). There the Court did not weigh or
even consider the plight of terminally ill persons who desired to end their life with
dignity but were precluded from doing so by the statute prohibiting assisted
suicide; rather, like this Court in Juvenile Male, it applied rational basis review.
Glucksberg, 521 U.S. at 728.
Windsor is fully consistent with this settled law. It did not use the perceived
harms to the disfavored class (economic and dignitary) to recognize a fundamental
right or to impose heightened scrutiny. The decision contains no language
suggesting it did either. The decision itself makes clear its purpose for examining
at some length those perceived harmsto determine whether DOMAs
discrimination between two classes of lawfully married couples was of an unusual
character and motivated by an improper animus or purpose. 133 S. Ct. at 2693
83

(referencing Dept of Agric. v. Moreno, 413 U.S. 528, 53435 (1973), and Romer
v. Evans, 517 U.S. 620, 633 (1996)).
The responsibility of the States for the regulation of domestic relations
is an important indicator of the substantial societal impact the States
classifications have in the daily lives and customs of its people.
DOMAs unusual deviation from the usual tradition of recognizing
and accepting state definitions of marriage here operates to deprive
same-sex couples of the benefits and responsibilities that come with
the federal recognition of their marriages. This is strong evidence of a
law having the purpose and effect of disapproval of that class. The
avowed purpose and practical effect of the law here in question are to
impose a disadvantage, a separate status, and so a stigma upon all who
enter into same-sex marriages made lawful by the unquestioned
authority of the States.

Id. Windsors examination of the perceived harms demonstrated the existence of
a disadvantage, a separate status, and so a stigma and did so as part of the larger
endeavor of showing, as required by Moreno and Romer, that the purpose and
practical effect of the law here in question [was] to impose such harms. 133 S.
Ct. at 2693.
In light of the settled law set forth above and honored by Windsor, the
Plaintiffs extended discussion of their plight resulting from the absence of a
genderless marriage regime in Nevada is simply not relevant to the substantive due
process issue of a fundamental right to such a regime or to the equal protection
issue of the level of judicial scrutiny applied to the decision to preserve the man-
woman marriage institution.
84

The Plaintiffs argue one particular harm at length: because not married in
the eyes of Nevada law, they do not receive the federal benefits accorded married
persons. Opening Br. at 1722. This argument has three fatal defects. First,
under settled law and as already noted, this harm (like the others advanced) is not
relevant to the due process fundamental right issue or to the equal protection level
of judicial scrutiny issue.
Second, this lack-of-federal-benefits harm is not relevant to any issue in this
case. Plaintiffs Complaint attacks only the exercise of State power, never the
exercise of federal power. Yet it is federal power that limits certain federal
benefits to couples lawfully married in their jurisdiction of residence. Only federal
power can expand the class of recipients of those federal benefits, and certainly
Congress has the power to make those benefits available to couples lawfully
married in any jurisdiction and/or to couples in a legal domestic partner
relationship, such as those who take advantage of Nevadas DPA. The fact that
federal law has notor has not yetexpanded in those ways is in no way a
function of State action. If the federal decision to limit benefits to couples lawfully
married in their jurisdiction of residence violates any constitutional provision,
110

that provision is the Fifth Amendment, not the Fourteenth Amendment, and this is
only a Fourteenth Amendment case.

110
It does not. See Dandridge v. Williams, 397 U.S. 471 (1970).
85

Third, if this argument about lack-of-federal-benefit harms is meant to track
Windsors approach to harmsto consider the existence of a disadvantage, a
separate status, and so a stigma as part of the larger endeavor of considering
whether the purpose and practical effect of the law here in question [was] to
impose such harmsthe argument fails entirely. In 2000 and 2002, when
Nevadas voters passed the Marriage Amendment, DOMA was the law of the land,
and it prevented federal marriage benefits to same-sex couples regardless of the
content of State law. So it is ludicrous to suggest that the voters motive was to
deprive same-sex couples of those federal benefits. That leaves only the
possibilityequally ludicrousthat after the Supreme Courts 5-4 decision in
Windsor in June 2013, Nevadas voters suddenly developed the mean-spirited
motive to maintain Nevadas Marriage Laws so as to facilitate the deprivation
resulting from the limits in federal lawswith that motive rendering the Marriage
Laws unconstitutional the hour after Windsor was announced.
In sum, the Plaintiffs lengthy discussion of harms advances not at all the
principled resolution of the real and important issues in this case but rather
confuses work on that task.
86

VI. THERE IS NO FUNDAMENTAL RIGHT TO A GENDERLESS MARRIAGE REGIME.
Because the Supreme Court has repeatedly recognized the fundamental right
of a man and a woman to marry,
111
Plaintiffs argue that this right must extend to
same-sex couples as well. Opening Br. at 3038. However, nearly all courts that
have considered that argument have rejected it. It runs afoul of the settled law that
governs recognition of a new fundamental right and polices the boundaries of
fundamental rights already recognized. And, most important of all, it is
constructed on a notion of what marriage is that is profoundly at odds with the
social institutional realities of contemporary American marriage.
Over the twenty years American courts have been intensely engaged with
the marriage issue, most have either expressly rejected same-sex couples
fundamental-right argument or declined to accept it although it was presented to
them.
112
This rejection is right in light of the settled law governing the
fundamental-rights issue generally and in light of the social realities of marriage.

111
See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (collecting cases).
112
E.g., ER 34 n.9; Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1098 (D. Haw.
2012); Wilson v. Ake, 354 F.Supp.2d 1298, 1307 (M.D. Fla. 2005); Standhardt v.
Super. Ct., 77 P.3d 451, 460 (Ariz. Ct. App. 2003); Dean v. District of Columbia,
653 A.2d 307, 33233 (D.C. 1995); Baehr v. Lewin, 852 P.2d 44, 55-57 (Haw.
1993); Morrison v. Sadler, 821 N.E.2d 15, 29 (Ind. Ct. App. 2005) (agreeing with
due process holding in Standhardt); Conaway v. Deane, 932 A.2d 571, 624 (Md.
2007); Lewis v. Harris, 908 A.2d 196, 211 (N.J. 2006) (Despite the rich diversity
of this State, the tolerance and goodness of its people . . . we cannot find that a
right to same-sex marriage is so deeply rooted in the traditions, history, and
87

This Court recently summarized that settled law:
The Supreme Court has described the fundamental rights protected
by substantive due process as those personal activities and decisions
that this Court has identified as so deeply rooted in our history and
traditions, or so fundamental to our concept of constitutionally
ordered liberty, that they are protected by the Fourteenth
Amendment. Those rights are few, and include the right to marry, to
have children, to direct the education and upbringing of ones
children, to marital privacy, to use contraception, to bodily integrity,
to abortion, and to refuse unwanted lifesaving medical treatment. [An
asserted right must] be so rooted in the traditions and conscience of
our people as to be ranked as fundamental, . . . and implicit in the
concept of ordered liberty, such that neither liberty nor justice
would exist if they were sacrificed[.]
United States v. Juvenile Male, 670 F.3d 999, 1012 (9th Cir. 2012), (citations
omitted). And importantly for present purposes, this Court also emphasized that
the analysis begins with a careful description of the asserted right. Id. (quoting
Reno v. Flores, 507 U.S. 292, 302 (1993)). Indeed, in case after case, the Supreme
Court has insisted on carefully formulating the interest at stake in substantive due
process cases. Washington v. Glucksberg, 521 U.S. 702, 722 (1997). In
Glucksberg, for instance, the Court rejected broad statements of the asserted
interest, such as a liberty interest in determining the time and manner of ones
own death or the right to choose a humane, dignified death, in favor of the more

conscience of the people of this State that it ranks as a fundamental
right.); Hernandez v. Robles, 855 N.E.2d 1, 1718 (N.Y. 2006); Andersen v. King
Cnty., 138 P.3d 963, 979 (Wash. 2006) (en banc) (calling a conclusion that there is
a fundamental right astonishing).

88

precise formulation whether the liberty specially protected by the Due Process
Clause includes a right to commit suicide which itself includes a right to assistance
in doing so. Id. at 72223 (citations omitted).
The Plaintiffs description of the asserted right is not careful; in fact,
nowhere do they explicitly describe the right, relying instead on a series of
allusions and negative analogies. Opening Br. at 3138. Thus, they suggest that
the right touches on . . . fundamental privacy rights, id. at 31, partakes of
freedom of personal choice, id. at 32, includes the freedom of choice of whom
to marry, id. at 33, and the freedom to choose ones partner, id., implicates the
liberty of individuals to build important personal relationships, id. at 34, and
includes the right of all people to enter into intimate associations, id. The right
Plaintiffs seek to have declared fundamental, however, is not at all difficult to
describe. The existing right to marry is and unquestionably always has been the
right of a man and a woman to marry. That is not the right Plaintiffs seek to
vindicate. They seek fundamental right status for a right to marry another person
of the same sex. Only this statement meets the degree of descriptive care
Glucksberg demands. See 521 U.S. at 722.
Our fundamental-rights jurisprudence, applied in a quite straight-forward
way, will not hold the right to marry a person of the same sex to be a fundamental
89

right. The right to marry a person of the same sex does not meet the test recently
restated in Juvenile Male. Historically, this Nation never recognized the right. It
did not exist anywhere in this Nation until a 4-3 decision of the Massachusetts
Supreme Judicial Court mandated it in that State in 2003 (effective date 2004).
Although a minority of the other States have followed suit, either by judicial
mandate or legislative action,
113
at the same time that was happening something
very big happened in our national life: thirty-one States amended their
constitutions to protect marriage as the union of a man and a woman, and six more
States continued protection by legislation.
114
So whether one looks back to the
time of the Founding or to the time of the Civil War Amendments or to just the
past fifteen or twenty years, the view is the same: This Nation and its people have
not caused the right to marry a person of the same sex to be deeply rooted in our
history and traditions or to be fundamental to our concept of constitutionally
ordered liberty, such that neither liberty nor justice would exist if the right were
not enshrined in constitutional law. Rather, this Nation and most of its people have
sought to preserve the union of a man and a woman as a core meaning of our
vital social institution of marriage.

113
See Addendum of Pertinent Authorities (Add.) at A-10 to A-17; note 97
supra.
114
See Add. at A-8 to A-15.
90

The cases relied on by Plaintiffs do not support a contrary conclusion.
Lawrence v. Texas, 539 U.S. 558 (2003), expressly differentiates between the
fundamental right of gay men and lesbians to enter an intimate relationship, on one
hand, and, on the other hand, the right to marry a member of ones own sex: The
present case does not . . . involve whether the government must give formal
recognition to any relationship that homosexual persons seek to enter. Id. at 578.
And Justice OConnor said that preserving the traditional institution of marriage
would be a legitimate state interest. Id. at 585 (OConnor, J., concurring).
Loving v. Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374
(1978), and Turner v. Safley, 482 U.S. 78 (1987), hold no relevance at all. Each
decision invalidated a state law withholding marriage from man-woman couples
for reasons that have nothing to do with this case. Moreover, the invocation of
Loving as part of the strategy to equate the man-woman meaning in marriage to
anti-miscegenation laws (described in the Introduction) reminds that the
comparison is a false analogy and therefore provides no basis for any court to
mandate the redefinition of marriage.
115

The Plaintiffs also quote a plurality opinion in Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992), that certain

115
Regarding the fallacy of this strategy, see Blankenhorn, Future, supra note 34,
at 17279; Girgis, supra note 34, at 7781; Monte Neil Stewart & William C.
Duncan, Marriage and the Betrayal of Perez and Loving, 2005 BYU L. Rev. 555.
91

matters, involving the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy, are central to the liberty
protected by the Fourteenth Amendment. Opening Br. at 39. But in a subsequent
majority opinion, the Supreme Court expressly denied that its liberty
jurisprudence, and the broad, individualistic principles it reflects safeguards a
range of interests derived from a general tradition of self-sovereignty or
deduced from abstract concepts of personal autonomy. Glucksberg, 521 U.S. at
72425 (citation omitted). Instead, the Court has taught: That many of the rights
and liberties protected by the Due Process Clause sound in personal autonomy
does not warrant the sweeping conclusion that any and all important, intimate, and
personal decisions are so protected, and Casey did not suggest otherwise. Id. at
72728 (citations omitted) (emphasis added).
The social realities of the marriage institution make starkly clear just how
novel, how profoundly radical, how different from the fundamental right to marry
the Plaintiffs asserted right is. Plaintiffs can marry or have their foreign
marriages recognized only if Nevada changes or is forced to change its legal
meaning of marriage from the union of a man and a woman to the union of two
persons without regard to gender. That is certain. This means that the right
Plaintiffs are seeking, in reality and substance, is the right to have a State-imposed
92

genderless marriage regime. This is the only right the State can give them.
Although the State has the power through the law to suppress the man-woman
meaning and thereby de-institutionalize the current marriage institution, the State
has no power to usher the Plaintiffs or any other same-sex couples into that
venerable institution. The very act of ushering them in will transform the old
institution (not all at once, of course, but certainly over time) and make it into a
profoundly different institution, one whose meanings, values, practices, and vitality
are speculative but certainly different from the meanings, values, practices and
vitality up until now inhering in the man-woman marriage institution.
116

Thoughtful and informed people have recognized from the beginning of the contest
over the marriage issue that, although same-sex couples look to the law to let them
into the privileged institution and the law may want to, it cannot; it can only give

116
See Brian Bix, Reflections on the Nature of Marriage, in Revitalizing the
Institution of Marriage for the Twenty-First Century: An Agenda for
Strengthening Marriage 11213 (Alan Hawkins et al. eds., 2002):

Marriage is an existing social institution. One might also helpfully
speak of it as an existing social good. The complication in the
analysis is that one cannot fully distinguish the terms on which the
good is available from the nature of the good. As Joseph Raz wrote
regarding same-sex marriage, When people demand recognition of
gay marriages, they usually mean to demand access to an existing
good. In fact they also ask for the transformation of that good. For
there can be no doubt that the recognition of gay marriage will effect
as great a transformation in the nature of marriage as that from
polygamous to monogamous or from arranged to unarranged
marriage.
93

them access to a different regime of different value.
117
So there is both a radical
and an extremely radical aspect of the fundamental right the Plaintiffs want this
Court to recognize: a right to both State creation of a genderless marriage regime
and State suppression of the man-woman marriage institution that unavoidably
competes with it. That is not a fundamental right in our national and
constitutional heritage but is the likely destroyer of one.
Because of this point, Plaintiffs and all genderless marriage advocates must
of necessity embrace the narrow or close personal relationship description of
marriage and try to get the courts to do the same, all the while trying to get them
also to turn a blind eye to the broad description of American marriage. The narrow
view posits a marriage regime already much like a genderless marriage regime, as
noted in Section I.C. above. But robust legislative facts sustain the broad
description of marriage and therefore sustain what we say here about the extremely
radical nature of the fundamental right claimed by the Plaintiffs.
VII. THERE IS NO LEGAL OR FACTUAL BASIS FOR DEPLOYING HEIGHTENED
SCRUTINY IN THIS CASE.

Plaintiffs plea for heightened scrutiny fails for at least three reasons.
One, Nevadas Marriage Laws infringe on no fundamental right. Two, the
Supreme Court is no longer in the business of dispensing suspect classification

117
See id.; Stewart, Judicial Redefinition, supra note 23, at 8385.
94

designations to this or that identity group so as to shield them from the workings of
normal democratic processes. Three, even if the Supreme Court were open to
such, the gay/lesbian community cannot satisfy the requirements for such a
designation, especially the politically powerless requirement.
The previous section establishes the first reason. As this Court recently said
in United States v. Juvenile Male: In a substantive due process analysis, we must
first consider whether the statute in question abridges a fundamental right. If [it
does] not, the statute need only bear a reasonable relation to a legitimate state
interest to justify the action. 670 F.3d 999, 1012 (9th Cir. 2012) (quoting
Washington v. Glucksberg, 521 U.S. 702, 722 (1997)). That is rational basis
review.
As to the second reason, from Romer to Lawrence to Windsor, there has
been a tremendous push to have the Supreme Court hold that sexual orientation
discrimination triggers heightened scrutiny. Consistently, the Court has not done
that. This reality, stretching now over almost two decades, validates this
assessment from one of the leading advocates of genderless marriage:
All classifications based on other characteristicsincluding age,
disability, and sexual orientationcurrently receive rational basis
review. Litigants still argue that new classifications should receive
heightened scrutiny. Yet these attempts have an increasingly
antiquated air in federal constitutional litigation, as the last
classification accorded heightened scrutiny by the Supreme Court was
95

that based on nonmarital parentage in 1977. At least with respect to
federal equal protection jurisprudence, this canon has closed.

Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 75657 (2011)
(emphasis added). The district court in this case stated well the likely reason for
that canon closing. ER 2728.
As to the third reason, even if the old canon were still open to addition, the
gay/lesbian community cannot meet the requirements for suspect classification
treatment, specifically the immutability and politically powerless
requirements. This suspect classification issueincluding the continuing
validity of High Tech Gays
118
as this Circuits authoritative voice on the issuehas
been fully ventilated. We adopt the analysis on the issue provided by the district
courts in this case and in the Hawaii marriage case.
119
We add only two points.
First, as explained in the Introduction above, the theory of political
powerlessness has been mugged by a gang of facts. In most succinct terms,
genderless marriage advocates by their own account are winning and will continue
to win the political battle in Nevada over marriage. This account relies on
legislative nose counting and credible polling data and builds on the fact that
super-majorities in both houses of the Nevada legislature in 2009 overrode the

118
High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir.
1990).
119
ER 1430; Jackson v. Abercrombie, 884 F.Supp.2d 1065, 10991103 (D.
Haw. 2012).
96

then-Governors veto of the DPA and that the legislature just this year enacted a
joint resolution starting the process of repealing the Marriage Amendment. As the
district court so well explained, invoking heightened scrutiny often operates to
preclude resolution of policy issues through democratic processes and, although
that may be appropriate in defense of a socially disdained and politically powerless
class or of a clear fundamental right, such preclusion in other cases inflicts grave
injury on the very structure, logic, and genius of our form of government. ER 27
28. Nevadas gay/lesbian community simply has no valid claim on this Court for
immunity from the rigors of democracy.
No doubt sensing this reality, the Plaintiffs argue that the relative political
powerless of a group [must be measured nationally], not in any one state.
Opening Br. at 60 n. 36. The only authority cited is Frontiero v. Richardson, 411
U.S. 677, 68588 (1973), which did not have before it this particular issue and
made no comment or allusion to it. It is bad logic and bad constitutional law that
Nevada must have its fair, open, effective, balanced democratic processes shunted
aside because of supposed political realities in Mississippi.
Plaintiffs also wrongly argue that somehow Windsor must be viewed as
endorsing the Second Circuits adoption of heightened scrutiny in cases of sexual
orientation discrimination. Opening Br. at 4950 n. 30. Windsor did no such
97

thing. It did not address at all that aspect of the Second Circuits decision. It did
not adopt as its own any part of that decision. All it did was affirm the Second
Circuits judgment, which was an affirmance of the district courts order holding
DOMA unconstitutional. In these circumstances, no authority supports the
Plaintiffs argument.
In short, the law directs that the constitutionality of Nevadas Marriage Laws
be determined by way of rational basis review. Without in any way qualifying or
backing away from that conclusion, we note again that Nevadas reasons for
preserving the man-woman marriage institution are sufficiently good and powerful
to sustain the Marriage Laws regardless of the level of scrutiny used.
VIII. NEVADAS MARRIAGE LAWS DO NOT CONSTITUTE SEX DISCRIMINATION.
Plaintiffs argue that the Marriage Laws discriminate against then on the
basis of sex. Opening Br. at 8692. This is not a hard issue. First, the courts have
nearly unanimously rejected that argument in the context of marriage cases.
120

120
E.g., ER 1216; Jackson, 884 F. Supp. 2d at 109899; Smelt v. Orange, 374 F.
Supp. 2d 861, 87677 (C.D. Cal. 2005); Wilson v. Ake, 354 F. Supp. 2d 1298,
130708 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 143 (W.D. Wash. 2004); In
re Marriage Cases, 183 P.3d 384, 439 (Cal. 2008); Conaway v. Deane, 932 A.2d
571, 599 (Md. 2007); Hernandez v. Robles, 855 N.E.2d 1, 1011 (N.Y. 2006);
Baker v. Vermont, 744 A.2d 864, 880 n.13 (Vt. 1999); Andersen v. King Cnty., 138
P.3d 963, 98789 (Wash. 2006)(en banc); Singer v. Hara, 522 P.2d 1187, 1192
(Wash. App. 1974).
98

Second, Nevadas Marriage Laws treat men as a class and women as a class
equally.
Third, marriages provision of the statuses and identities of husband and
wife does not constitute government endorsement of the separate spheres
tradition or an impermissible sex-role allocation or perpetuate prescriptive sex
stereotypes. Although some cultures and subcultures have hung various sex-roles
and hence sex-role stereotypes on the pegs of husband and wife, such sex-roles and
stereotypes and any resulting separate spheres tradition are not inherent in the two
statuses, and nothing in Nevadas Marriage Laws reinforces sex-role stereotypes or
seeks to influence husbands and wives in their decisions regarding roles and
specializations. Indeed, the husband and wife statuses are the antithesis of a
separate spheres ethos exactly because the man and the woman are entering into
one and the same spheremarriage.
Fourth, the Plaintiffs sex discrimination argument, if accepted, would have
the Fourteenth Amendments Equal Protection Clause do somethingmandate
genderless marriagethat the proposed Equal Rights Amendment, which was
advanced to provide greater protection against sex discrimination than the
Fourteenth Amendment provides, would not do.
What of the quality of debate in states that have not ratified the
ERA? Some legislators . . . have explained nay votes on the ground
99

that the ERA would authorize homosexual marriage. The
congressional history is explicit that the ERA would do no such thing.
Ruth Bader Ginsburg, Ratification of the Equal Rights Amendment: A Question of
Time, 57 Tex. L. Rev. 919, 937 (1979) (emphasis added).
IX. NEVADAS MARRIAGE LAWS ARE NOT THE RESULT OF ANIMUS AND A BARE
DESIRE TO HARM.

The Supreme Court in Windsor inquired whether DOMAs discrimination
between two classes of lawfully married couples in disregard of State law was of
an unusual character and whether DOMA was motivated by an improper animus
or purpose. United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (referencing
Dept of Agric. v. Moreno, 413 U.S. 528, 53435 (1973), and Romer v. Evans, 517
U.S. 620, 633 (1996)). We have already shown how in that case the Court got to a
yes answer on both questions. See Section V.E. above. Here, in contrast, no is
without doubt the right answer to both questions.
First, as Windsor reaffirmed forcefully, it is for the several States to define
and regulate marriage within their respective jurisdictions; their authority there is
virtually plenary. Over the history of this Nation, the States usually have exercised
that power to give the laws imprimatur and protection to the man-woman
marriage institution. Indeed, before 2003, that is exactly how every State had
always exercised that power. Since 2003, that has continued as the usual way, as
shown by the enshrining, protecting, and perpetuating efforts of the large majority
100

of the States.
121
Indeed, DOMAs rejection of New Yorks marriage definition was
as unusual a government action as Nevadas perpetuation of man-woman marriage
is a usual one. Those actions are literally at opposite ends of the unusual/usual
spectrum.
Second, regarding the question whether Nevadas Marriage Laws were
motivated by an improper animus or purpose, the absence of any unusual
government action is strong evidence of no, as Windsor teaches. Moreover,
Plaintiffs cannot derive an animus conclusion from a supposed absence of
legitimate reasons for the governmental action because, as shown by robust
legislative facts, there are multiple, compelling, legitimate reasons for Nevadas
Marriage Laws. Faced with that reality but still desiring to get traction from the
Supreme Courts animus doctrine, the Plaintiffs do the only thing they can do
they whistle past the graveyard, they ignore those legislative facts, they
dismissively label them as a baseless private view that marriage equality tarnishes
the institution of marriage, Opening Br. at 16, and they disingenuously assert that
Defendant Officials have not identified injury to the institution of marriage,
Opening Br. at 36, while ignoring that the Coalition has identified likely injury to
the institution of marriageand that Clerk-Recorder Glover, one of the
Defendant Officials, expressly adopted the Coalitions work-product, except the

121
See Add. at A-8 to A-15.
101

portion addressing religious liberties.
122
Plaintiffs present no credible evidence of
a bare desire to harm. In contrast, we have shown how a wide and deep body of
scholarly work is in full harmony with the judgments, intuitions, perceptions,
assessments, and conclusions given voice in the votes of Nevadas citizens in favor
of the Marriage Amendment and therefore in favor of preserving the man-woman
marriage institution and the valuable benefits it materially and even uniquely
provides. That showing negates the animus slander.
X. NEVADAS DPA REINFORCES RATHER THAN UNDERMINES THE
CONSTITUTIONALITY OF NEVADAS MARRIAGE LAWS.

The Plaintiffs appear to argue that Nevadas enactment of its DPA undercuts
Nevadas stated need to preserve the man-woman meaning at the core of the
marriage institution because the DPA shows the States official assessment to be
that same-sex couples are as worthy as married man-woman couples of the duties,
responsibilities, and rights of marriage, including those pertaining to parenthood.
Opening Br. at 16, 36, 37, and 97 n. 51. Of course Nevada law recognizes with the
DPA, as its good-spirited society does generally, that gay men and lesbians are
capable, worthy, and contributing citizens of our State. But that reality is relevant
only to the Romer/Windsor issue in that it shows the absence of animus towards
gay men and lesbians and the absence in Nevada society of a bare desire to harm.

122
Dist. Ct. Dkt. 97.
102

The capability reality is not relevant to the big constitutional issue: Does
Nevada have sufficiently good reasons to preserve the man-woman marriage
institution? As demonstrated above, those reasons are the valuable social benefits
materially provided by that institution by way of its core man-woman meaning.
By expressly identifying a domestic partnership as not marriage, Nev. Rev. Stat.
122A.510, the DPA reinforces that demonstration. That demonstration is not
altered at all by the relative capability or incapability of gay men and lesbians.
That relative capability is simply not relevant to the ultimate constitutional issue.
It is an argument for the arena of politics and ballot campaigns where the marriage
issue rightly belongs.
Any suggestion that the DPA can or does counter any of the policy
assessments and decisions advanced by the Marriage Amendment is defeated as a
matter of law by the legislative status of the former and the constitutional status of
the latter. King v. Bd. of Regents of Univ. of Nevada, 200 P.2d 221, 22526 (Nev.
1948) (Nevada legislation cannot contravene some expressed or necessarily
implied limitation appearing in the [Nevada] constitution itself, and it is not
essential that any given limitation of power be definitely expressed in the
constitution. Every positive direction contains an implication against anything
103

contrary to it, or which would frustrate or disappoint the purpose of that
[constitutional] provision.) (internal quotations omitted).
CONCLUSION
The Coalition respectfully urges this Court to hold Nevadas Marriage Laws
constitutional and affirm the district courts judgment.
Dated: January 21, 2014 Respectfully submitted,

Monte Neil Stewart
Craig G. Taylor
Daniel W. Bower
Boise, ID 83713
Tel: (208) 345-3333

By: s/ Monte Neil Stewart
Monte Neil Stewart

104

STATEMENT OF RELATED CASES
Pursuant to Ninth Circuit Rule 28-2.6, Defendant-Appellee Coalition for the
Protection of Marriage is aware of no related cases pending in the United States
Court of Appeals for the Ninth Circuit, other than the case identified as related in
the Plaintiffs-Appellants Opening Brief.

Dated: January 21, 2014 By: s/ Monte Neil Stewart
Monte Neil Stewart

A-i
ADDENDUM OF PERTINENT AUTHORITIES
TABLE OF CONTENTS
Page(s)
Constitutional Provisions
U.S. Const. amend XIV, 1 ................................................................................. A-1
Nev. Const. art. XIX, 2(1) .................................................................................. A-1
Nev. Const. art. XIX, 2(4) ................................................................................... A-1
Nev. Const. art. I, 21 ........................................................................................... A-1
Nevada Revised Statutes
Nev. Rev. Stat. 122.020 ..................................................................................... A-2
Nev. Rev. Stat. 122A.040 .................................................................................. A-3
Nev. Rev. Stat. 122A.100 .................................................................................. A-3
Nev. Rev. Stat. 122A.200 .................................................................................. A-4
Nev. Rev. Stat. 122A.510 .................................................................................. A-6
Nevada Statutes
Nev. Stat. 88 (1876) ........................................................................................... A-6
Laws of the Territory of Nevada
Part 2:33: 1861 ...................................................................................................... A-6
Charts
Ballot Measures .................................................................................................... A-8
A-ii

Statutory and State Constitutional Provisions .................................................... A-12
Court Decisions on the Marriage Issue Since 1993 ............................................ A-16
A-1

U.S. Const. amend. XIV, 1

All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.

Nev. Const. art. I, 21

Only a marriage between a male and female person shall be recognized and
given effect in this state.

Nev. Const. art. XIX, 2(1)

Notwithstanding the provisions of Section 1 of Article 4 of this Constitution,
but subject to the limitations of Section 6 of this Article, the people reserve to
themselves the power to propose, by initiative petitions, statutes and amendments
to statutes and amendments to this Constitution, and to enact or reject them at the
polls.

Nev. Const. art. XIX, 2(4)

If the initiative petition proposes an amendment to the Constitution, the
person who intends to circulate it shall file a copy with the Secretary of State
before beginning circulation and not earlier than September 1 of the year before the
year in which the election is to be held. After its circulation it shall be filed with
the Secretary of State not less than 90 days before any regular general election at
A-2
which the question of approval or disapproval of such amendment may be voted
upon by the voters of the entire State. The circulation of the petition shall cease on
the day the petition is filed with the Secretary of State or such other date as may be
prescribed for the verification of the number of signatures affixed to the petition,
whichever is earliest. The Secretary of State shall cause to be published in a
newspaper of general circulation, on three separate occasions, in each county in the
State, together with any explanatory matter which shall be placed upon the ballot,
the entire text of the proposed amendment. If a majority of the voters voting on
such question at such election votes disapproval of such amendment, no further
action shall be taken on the petition. If a majority of such voters votes approval of
such amendment, the Secretary of State shall publish and resubmit the question of
approval or disapproval to a vote of the voters at the next succeeding general
election in the same manner as such question was originally submitted. If a
majority of such voters votes disapproval of such amendment, no further action
shall be taken on such petition. If a majority of such voters votes approval of such
amendment, it shall, unless precluded by subsection 5 or 6, become a part of this
Constitution upon completion of the canvass of votes by the Supreme Court.

Nev. Rev. Stat. 122.020

122.020 Persons capable of marriage; consent of parent or guardian.

1. Except as otherwise provided in this section, a male and a female
person, at least 18 years of age, not nearer of kin than second cousins or cousins of
the half blood, and not having a husband or wife living, may be joined in marriage.

2. A male and a female person who are the husband and wife of each other
may be rejoined in marriage if the record of their marriage has been lost or
destroyed or is otherwise unobtainable.

3. A person at least 16 years of age but less than 18 years of age may marry
only if the person has the consent of:

(a) Either parent; or

(b) Such persons legal guardian.

A-3

Nev. Rev. Stat. 122A.040

122A.040 Domestic partnership defined.

Domestic partnership means the social contract between two persons that
is described in NRS 122A.100.


122A.100 Registration: Procedure; fees; eligibility; issuance of certificate.

1. A valid domestic partnership is registered in the State of Nevada when
two persons who satisfy the requirements of subsection 2:

(a) File with the Office of the Secretary of State, on a form prescribed by
the Secretary of State, a signed and notarized statement declaring that both
persons:

(1) Have chosen to share one anothers lives in an intimate and committed
relationship of mutual caring; and

(2) Desire of their own free will to enter into a domestic partnership; and

(b) Pay to the Office of the Secretary of State a reasonable filing fee
established by the Secretary of State, which filing fee must not exceed the total of
an amount set by the Secretary of State to estimate:

(1) The cost incurred by the Secretary of State to issue the Certificate
described in subsection 3; and

(2) Any other associated administrative costs incurred by the Secretary of
State.

A-4


122A.200 Rights and duties of domestic partners, former domestic partners and
surviving domestic partners.

1. Except as otherwise provided in NRS 122A.210:

(a) Domestic partners have the same rights, protections and benefits, and
are subject to the same responsibilities, obligations and duties under law, whether
derived from statutes, administrative regulations, court rules, government policies,
common law or any other provisions or sources of law, as are granted to and
imposed upon spouses.

(b) Former domestic partners have the same rights, protections and
benefits, and are subject to the same responsibilities, obligations and duties under
law, whether derived from statutes, administrative regulations, court rules,
government policies, common law or any other provisions or sources of law, as are
granted to and imposed upon former spouses.

(c) A surviving domestic partner, following the death of the other
partner, has the same rights, protections and benefits, and is subject to the same
responsibilities, obligations and duties under law, whether derived from statutes,
administrative regulations, court rules, government policies, common law or any
other provisions or sources of law, as are granted to and imposed upon a widow or
a widower.

(d) The rights and obligations of domestic partners with respect to a
child of either of them are the same as those of spouses. The rights and obligations
of former or surviving domestic partners with respect to a child of either of them
are the same as those of former or surviving spouses.

(e) To the extent that provisions of Nevada law adopt, refer to or rely
upon provisions of federal law in a way that otherwise would cause domestic
partners to be treated differently from spouses, domestic partners must be treated
by Nevada law as if federal law recognized a domestic partnership in the same
manner as Nevada law.

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(f) Domestic partners have the same right to nondiscriminatory
treatment as that provided to spouses.

(g) A public agency in this State shall not discriminate against any
person or couple on the basis or ground that the person is a domestic partner rather
than a spouse or that the couple are domestic partners rather than spouses.

(h) The provisions of this chapter do not preclude a public agency from
exercising its regulatory authority to carry out laws providing rights to, or
imposing responsibilities upon, domestic partners.

(i) Where necessary to protect the rights of domestic partners pursuant
to this chapter, gender-specific terms referring to spouses must be construed to
include domestic partners.

(j) For the purposes of the statutes, administrative regulations, court
rules, government policies, common law and any other provision or source of law
governing the rights, protections and benefits, and the responsibilities, obligations
and duties of domestic partners in this State, as effectuated by the provisions of this
chapter, with respect to:

(1) Community property;

(2) Mutual responsibility for debts to third parties;

(3) The right in particular circumstances of either partner to seek
financial support from the other following the dissolution of the partnership;
and

(4) Other rights and duties as between the partners concerning
ownership of property,

any reference to the date of a marriage shall be deemed to refer to the date of
registration of the domestic partnership.

2. As used in this section, public agency means an agency, bureau,
board, commission, department or division of the State of Nevada or a political
subdivision of the State of Nevada.

A-6


122A.510 Domestic partnership not marriage for purposes of certain provisions
of Nevada Constitution.

A domestic partnership is not a marriage for the purposes of Section 21 of
Article 1 of the Nevada Constitution.

Nev. Stat. 88 (1876)
Section 1. Section two of this Act is hereby amended, so as to read as follows:
Section Two. Male persons of the age of eighteen years, and female persons of the
age of sixteen year, not nearer of kin than second cousins, and not having a
husband or wife living, may be joined in marriage; provided always, that male
persons under the age of twenty-one years, and female persons under the age of
eighteen years, shall first obtain the consent of their fathers, respectively, or in case
of the death or incapacity of their fathers, then of their mothers or guardians; and,
provided further, that nothing in this Act shall be construed so as to make the issue
of any marriage illegitimate if the person or persons shall not be of lawful age.
. . . .

Laws of the Territory of Nevada, Part 2:33: 1861

Section 1. That marriage, so far as its validity in law is concerned, is a civil
contract, to which the consent of the parties capable in law of contracting, is
essential.

Section 2. Every male person, who shall have attained the full age of eighteen
years, and every female, who shall have attained the full age of sixteen years, shall
be capable, in law, of contracting marriage, if otherwise competent; provided,
A-7
however, that nothing in this act shall be construed so as to make the issue of any
marriage illegitimate, if the person shall not be of lawful age; and provided,
further, that all minor who shall have attained the age provided in this act for the
contracting of marriage, shall be deemed in law to have attained their majority
upon entering into the bonds of matrimony.

Section 3. No marriage shall be contracted while either the parties shall have a
husband or wife living, nor between parties who are nearer of kin than second
cousins, computing by the rules of civil law, whether the half or the whole blood.
. . . .

A-8
The Definition of Marriage:
Ballot Measures

Alabama: 2006; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; legislature initiated; passed 81%/19%

Alaska: 1998; to amend constitution to enshrine man-woman marriage; legislature
initiated; passed 68%/31%

Arizona: 2006; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; voter initiated; failed 48%/52%

Arizona: 2008; to amend constitution to enshrine man-woman marriage;
legislature initiated; passed 56%/44%

Arkansas: 2004; to amend constitution to enshrine man-woman marriage and
prohibit civil unions; voter initiated; passed 75%/25%

California: 2000; to enact super-legislation to enshrine man-woman marriage;
voter initiated; passed 61%/39%

California: 2008; to amend constitution to restore man-woman marriage; voter

Colorado: 2006; to amend constitution to enshrine man-woman marriage; voter

Florida: 2008; to amend constitution to enshrine man-woman marriage and

Georgia: 2004; to amend constitution to enshrine man-woman marriage and

*Hawaii: 1998; to amend constitution to give legislature sole power to define
marriage; legislature initiated; passed 69%/31%
A-9

Idaho: 2006; to amend constitution to enshrine man-woman marriage and prohibit
civil unions; legislature initiated; passed 63%/37%

Kansas: 2005; to amend constitution to enshrine man-woman marriage and

Kentucky: 2004; to amend constitution to enshrine man-woman marriage and

Louisiana: 2004; to amend constitution to enshrine man-woman marriage and

Maine: 2009; to preserve man-woman marriage; voter initiated following
legislature vote to approve genderless marriage; passed 53%/47%

Maine: 2012; to approve genderless marriage via referendum; voter initiated;
passed 53%/47%

Maryland: 2012; to approve genderless marriage legislation; voter initiated
following legislature vote to approve genderless marriage; passed 52%/48%

Michigan: 2004; to amend constitution to enshrine man-woman marriage and

*Minnesota: 2012; to amend constitution to enshrine man-woman marriage;
legislature initiated; failed 47%/53%

Mississippi: 2004; to amend constitution to enshrine man-woman marriage;

Missouri: 2004; to amend constitution to enshrine man-woman marriage;

A-10
Montana: 2004; to amend constitution to enshrine man-woman marriage; voter

Nebraska: 2000; to amend constitution to enshrine man-woman marriage and

Nevada: 2000; to amend constitution to enshrine man-woman marriage; voter

Nevada: 2002; to amend constitution to enshrine man-woman marriage; voter

North Carolina: 2012; to amend constitution to enshrine man-woman marriage;

North Dakota: 2004; to amend constitution to enshrine man-woman marriage and

Ohio: 2004; to amend constitution to enshrine man-woman marriage and prohibit
civil unions; voter initiated; passed 62%/38%

Oklahoma: 2004; to amend constitution to enshrine man-woman marriage and

Oregon: 2004; to amend constitution to enshrine man-woman marriage; voter

South Carolina: 2006; to amend constitution to enshrine man-woman marriage
and prohibit civil unions; legislature initiated; passed 78%/22%

South Dakota: 2006; to amend constitution to enshrine man-woman marriage and

Tennessee: 2006; to amend constitution to enshrine man-woman marriage and
A-11

Texas: 2005; to amend constitution to enshrine man-woman marriage and prohibit

Utah: 2004; to amend constitution to enshrine man-woman marriage and prohibit

Virginia: 2006; to amend constitution to enshrine man-woman marriage and

Washington: 2012; to approve genderless marriage legislation; voter initiated
following legislature vote to approve genderless marriage; passed 54%/46%

Wisconsin: 2006; to amend constitution to enshrine man-woman marriage and

*Note: In Hawaii and Minnesota, a blank vote counts in essence as a no vote.
For purposes of this appendix, in those two states, blank votes were counted as if
they were no votes.

A-12
The Definition of Marriage:
Statutory and State Constitutional Provisions

Alabama: Ala. Const. amend. 774 (man-woman)

Alaska: Alaska Const. art. I, 25 (man-woman)

Arizona: Ariz. Const. art. XXX (man-woman)

Arkansas: Ark. Const. amend. LXXXII, 1 (man-woman)

California: Cal. Const. art. I, 7.5 (man-woman) struck down as unconstitutional
by Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (purportedly
binding as appeals were vacated or did not address merits) (genderless);

Colorado: Colo. Const. art. II, 31 (man-woman)

Connecticut: Conn. Gen. Stat. 46b-20 (genderless)

Delaware: Del. Code tit. 13, 101 (genderless)

District of Columbia: D.C. Code 46-401 (genderless)

Florida: Fla. Const. art. I, 27 (man-woman)

Georgia: Ga. Const. art. I, 4 1 (man-woman)

Hawaii: Haw. Rev. Stat. 572-1et seq. (man-woman)

Idaho: Idaho Const. art. III, 28 (man-woman)

Illinois: 750 Ill. Comp. Stat. 5/213.1 (man-woman; genderless marriage scheduled
to begin June 1, 2014, for most couples; see also Lee v. Orr, No. 1:13-cv-08719
(N.D. Ill. Dec. 16, 2013) (genderless marriage required immediately for terminally
ill couples)).
A-13

Indiana: Ind. Code Ann. 31-11-1-1 (man-woman)

Iowa: Man-woman definition struck down by Varnum v. Brien, 763 N.W.2d 862
(Iowa 2009) (genderless)

Kansas: Kan. Const. art. XV, 16 (man-woman)

Kentucky: Ky. Const. 233A (man-woman)

Louisiana: La. Const. art. XII, 15 (man-woman)

Maine: Me. Rev. Stat. tit. 19-A, 650, 701 (genderless)

Maryland: Md. Code, Fam. Law 2-201 (genderless)

Massachusetts: Man-woman definition struck down by Goodridge v. Dept of
Pub. Health, 798 N.E.2d 941 (Mass. 2003) (genderless)

Michigan: Mich. Const. art. I, 25 (man-woman)

Minnesota: Minn. Stat. 517.01 to .03 (genderless)

Mississippi: Miss. Const. art. XIV, 263A (man-woman)

Missouri: Mo. Const. art. I, 33 (man-woman)

Montana: Mont. Const. art. XIII, 7 (man-woman)

Nebraska: Neb. Const. art. I, 29 (man-woman)

Nevada: Nev. Const. art. I, 21 (man-woman)

New Hampshire: N.H. Rev. Stat. 457:1-a (genderless)

A-14
New Jersey: Man-woman definition struck down by Garden State Equality v.
Dow, 2013 WL 5687193 (N.J. Super. Ct. Law Div. Sept. 27, 2013)

New Mexico: Griego v. Oliver, ___ P.3d ___, 2013 WL 6670704 (N.M. Dec. 19,
2013) (construing New Mexico marriage laws, N.M. Stat. 40-1-1 et seq., to
mean the voluntary union of two persons to the exclusion of all others)
(genderless)

New York: N.Y. Dom. Rel. Law 10-a (genderless)

North Carolina: N.C. Const. art. XIV, 6 (man-woman)

North Dakota: N.D. Const. art. XI, 28 (man-woman)

Ohio: Ohio Const. art. XV, 11 (man-woman)

Oklahoma: Okla. Const. art. II, 35 (man-woman), declared unconstitutional by
Bishop v. United States ex rel. Holder, ___ F. Supp. 2d ___, 2014 WL 116013 (D.
Okla. Jan. 14, 2014)

Oregon: Or. Const. art. XV, 5a (man-woman)

Pennsylvania: 23 Pa. Cons. Stat. 1704 (man-woman)

Rhode Island: R.I. Gen. Laws 15-1-1 et seq. (genderless)

South Carolina: S.C. Const. art. XVII, 15 (man-woman)

South Dakota: S.D. Const. art. XXI, 9 (man-woman)

Tennessee: Tenn. Const. art. XI, 18 (man-woman)

Texas: Tex. Const. art. I, 32 (man-woman)

A-15
Utah: Utah Const. art. I, 29 (man-woman), declared unconstitutional by Kitchen
v. Herbert, ___ F. Supp. 2d ___, 2013 WL 6697874 (D. Utah Dec. 20. 2013),
appeal docketed, No. 13-4178 (10th Cir. Dec. 20, 2013).

Vermont: Vt. Stat. tit. 15, 8 (genderless)

Virginia: Va. Const. art. I, 15-A (man-woman)

Washington: Wash. Rev. Code 26.04.020 et. seq. (genderless)

West Virginia: W. Va. Code 48-2-104(c) (man-woman)

Wisconsin: Wis. Const. art. XIII, 13 (man-woman)

Wyoming: Wyo. Stat. 20-1-101 (man-woman)

A-16
Court Decisions on the
Marriage Issue Since 1993

State Appellate Court Decisions:

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)
Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995)
Baker v. Vermont, 744 A.2d 864 (Vt. 1999)
Standhardt v. Super. Ct., 77 P.3d 451 (Ariz. Ct. App. 2003)
Goodridge v. Dept of Pub. Health, 798 N.E.2d 941 (Mass. 2003)
In re Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004)
Li v. Oregon, 110 P.3d 91 (Or. 2005)
Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005)
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006)
Andersen v. King County, 138 P.3d 963 (Wash. 2006)
Lewis v. Harris, 908 A.2d 196 (N.J. 2006)
Conaway v. Deane, 932 A.2d 571 (Md. 2007)
In re Marriage Cases, 183 P.3d 384 (Cal. 2008)
Kerrigan v. Commr of Pub. Health, 957 A.2d 407 (Conn. 2008)
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)
Garden State Equality v. Dow, 2013 WL 5687193 (N.J. Super. Ct. Law Div.
Sept. 27, 2013)
Griego v. Oliver, ___ P.3d ___, 2013 WL 6670704 (N.M. Dec. 19, 2013)

Federal Court Decisions:

In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004)
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005)
Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006)
Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010)
In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011)
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012)
Golinski v. Office of Personnel Mgmt., 824 F.Supp.2d 968 (N.D. Cal. 2012)
Massachusetts v. Health & Human Servs., 862 F.3d 1 (1st Cir. 2012)
Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012)
A-17
Pedersen v. Office of Personnel Mgmt., 881 F. Supp. 2d 394 (D. Conn.
2012)
Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012)
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012)
United States v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013)
Kitchen v. Herbert, ___ F. Supp. 2d ___, 2013 WL 6697874 (D. Utah Dec.
20, 2013)
Bishop v. United States ex rel. Holder, ___ F. Supp. 2d ___, 2014 WL
116013 (D. Okla. Jan. 14, 2014)



Monte Neil Stewart

Case No. 12-17668


BEVERLY SEVCIK, et al.
v.
BRIAN SANDOVAL, et al.,
and


DEFENDANT-APPELLEES
SUPPLEMENTAL EXCERPTS OF RECORDS
VOLUME 1 OF 5

Monte N. Stewart
Boise, ID 83713
Tel: (208) 345-3333
INDEX TO SUPPLEMENTAL EXCERPTS OF RECORD

VOLUME 1 OF 5

Date Filed Document Description Dist. Ct.
Dkt. No.
SER
Pg. No.
9/10/2012 Institute for American Values, Why Marriage
Matters: Twenty-Six Conclusions from the
Social Sciences, (3d ed. 2011)
73 1

9/10/2012 The Witherspoon Institute, Marriage and the
Public Good: Ten Principles (2008)
73 49
9/10/2012 Institute for American Values, Marriage and
the Law: A Statement of Principles (2006)
73 87
9/10/2012 Institute for American Values (Dan Cere,
principal investigator), The Future of Family
Law: Law and the Marriage Crisis in North
America (2005)
73 131
9/10/2012 Institute for American Values (Elizabeth
Marquardt, principal investigator), The
Revolution in Parenthood: The Emerging
Global Clash Between Adult Rights and
Childrens Needs (2006)
73 182

VOLUME 2 OF 5

Dkt. No.
SER
Pg. No.
9/10/2012 Commission on Parenthoods Future
(Elizabeth Marquardt, principal investigator),
One Parent or Five: A Global Look at
Todays New Intentional Families (2011)
73 226
Marquardt, Noval D. Glenn, & Karen Clark,
co-investigators), My Daddys Name is
Donor: A New Study of Young Adults
Conceived Through Sperm Donation (2010)
73 298

VOLUME 2 OF 5 (continued)

Dkt. No.
SER
Pg. No.
9/10/2012 Margaret Somerville, What About the
Children, in Divorcing Marriage: Unveiling
the Dangers in Canadas New Social
Experiment 76-78 (Daniel Cere and Douglas
Farrow eds., 2004)
73 438

VOLUME 3 OF 5

Dkt. No.
SER
Pg. No.
9/10/2012 Margaret Somerville, Childrens human rights
and unlinking child-parent biological bonds
with adoption, same-sex marriage and new
reproductive technologies, 13 J. of Fam. Stud.
179-201 (2007)
73 456
9/10/2012 Maggie Gallagher, (How) Does Marriage
Protect Child Well-Being?, in The Meaning of
Marriage: Family, State, Market, and Morals
29-52 (Robert P. George & Jean Bethke
Elshtain eds., 2006)
73 479
9/10/2012 Seana Sugrue, Soft Despotism and Same-Sex
Marriage, in The Meaning of Marriage:
Family, State, Market, and Morals 172-96
(Robert P. George & Jean Bethke Elshtain
eds., 2006)
73 497

VOLUME 4 OF 5

Dkt. No.
SER
Pg. No.
9/10/2012 Claude Lvi-Strauss, The View from Afar 39-
42 (Joachim Neugroschel & Phoebe Hoss
trans., 1985)
73 524
9/10/2012 G. Robina Quale, A History of Marriage
Systems 1-3 (1988)
73 530

Dkt. No.
SER
Pg. No.
9/10/2012 James Q. Wilson, The Marriage Problem 40-
41, 168-70 (2002)
73 535
9/10/2012 Kate Stanley, The Institute for Public Policy
Research, Daddy Dearest? Active Fatherhood
and Public Policy 57 (Kate Stanley ed., 2005)
73 543
9/10/2012 David Popenoe, Life without father:
Compelling new evidence that fatherhood and
marriage are indispensable for the good of
children and society
139-63 (1996)
73 546
9/10/2012 William J. Doherty et al., Responsible
Fathering: An Overview and Conceptual
Framework, 60 J. of Marriage and Fam. 277-
292 (1998)
73 561
9/10/2012 Kristin Anderson Moore et al., Marriage from
a Childs Perspective: How Does Family
Structure Affect Children, and What Can We
Do About It?, a Child Trends Research Brief
(2002)
73 577
9/10/2012 Lawrence B. Finer & Mia R. Zolna,
Unintended pregnancy in the United States:
incidence and disparities, 2006, 84
Contraception 478-485 (2011)
73 585

VOLUME 5 OF 5

Dkt. No.
SER
Pg. No.
9/10/2012 Samuel W. Sturgeon, The Relationship
Between Family Structure and Adolescent
Sexual Activity, a familyfacts.org Special
Report (November 2008)
80 593


Dkt. No.
SER
Pg. No.
9/10/2012 Paul R. Amato, The Impact of Family
Formation Change on the Cognitive, Social,
and Emotional Well-Being of the Next
Generation, 15 The Future of Children 75-96
(2005)
80 595
9/10/2012 Mark Regnerus, How different are the adult
children of parents who have same-sex
relationships? Findings from the New Family
Structures Study, 41 Soc. Sci. Research 752-
770 (2012)
80 618
9/10/2012 Loren Marks, Same-sex parenting and
childrens outcomes: A closer examination of
the American Psychological
Associations brief on lesbian and gay
parenting, 41 Soc. Sci. Research 735-751
(2012)
80 637
9/10/2012 Brief of Amicus Curiae, American College of
Pediatricians, in Windsor v. The Bipartisan
Legal Advisory Group of the United States
House of Representatives, No. 12-2335 (2d
Cir. Aug. 17, 2012)
80 654
9/10/2012 Douglas Farrow, Why Fight Same-Sex
Marriage?, Touchstone, Jan-Feb 2012
81 683
9/10/2012 Katherine Acey et al., Beyond Same-Sex
Marriage: A new strategic vision for all our
families & relationships (July 26, 2006)
82 690
10/25/2012 Margaret Somerville, Childrens Human
Rights to Natural Biological Origins and
Family Structure, 1 Intl J. Jurisprudence Fam.
25 (2010)
95-1 717
10/25/2012 D. Richardson, Sexuality and Gender, in
International Encyclopedia of the Social &
Behavioral Sciences 14018-21 (2001)
95-1 739

Why Marriage Matters, Third Edition
Thirty Conclusions from the Social Sciences
Institute for American Values
National Marriage Project
A Report from Family Scholars
SER 1
T
HIS STATEMENT comes from a team of family scholars chaired by
W. Bradford Wilcox of the University of Virginia. The state-
ment is sponsored by the Center for Marriage and Families at
the Institute for American Values and the National Marriage Project at
the University of Virginia. The sponsors are grateful to The Lynde and
Harry Bradley Foundation, The William H. Donner Foundation, and
Fieldstead and Company for their generous support.
On the cover: Woman Writing List That
Binds Two Hearts by Bonnie Timmons.
Bonnie Timmons/The Image Bank/
Getty Images.
2011, Institute for American Values.
No reproduction of the materials con-
tained herein is permitted without the
written permission of the Institute for
American Values.
First edition published 2002. Second edi-
tion 2005. Third edition published 2011.
ISBN #978-1-931764-24-7
1841 Broadway, Suite 211
New York, NY 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
Website: www.americanvalues.org
Email: info@americanvalues.org
SER 2
Table of Contents
The Authors.............................................................................................
Introduction.............................................................................................
Five New Themes.............................................................................
A Word about Selection Effects........................................................
Our Fundamental Conclusions........................................................
The Thirty Conclusions: A Snapshot......................................................
The Thirty Conclusions...........................................................................
Family................................................................................................
Economics.........................................................................................
Physical Health and Longevity.........................................................
Mental Health and Emotional Well-Being........................................
Crime and Domestic Violence..........................................................
Conclusion...............................................................................................
Appendix: Figures...................................................................................
Endnotes..................................................................................................
4
6
7
9
11
12
14
14
23
28
33
37
42
44
47
SER 3
Page 4
The Authors
W. BRADFORD WILCOX is associate professor of sociology and director of
the National Marriage Project at the University of Virginia.
JARED R. ANDERSON is assistant professor of marriage and family therapy
at Kansas State University.
WILLIAM DOHERTY is professor of family social science and director of
the Citizen Professional Center at the University of Minnesota.
DAVID EGGEBEEN is associate professor of human development and soci-
ology at Pennsylvania State University.
CHRISTOPHER G. ELLISON is the Deans Distinguished Professor of Social
Science at the University of Texas at San Antonio.
WILLIAM GALSTON is Ezra K. Zilkha Chair and Senior Fellow in
Governance Studies at the Brookings Institution.
NEIL GILBERT is Chernin Professor of Social Welfare and co-director of
the Center for Child and Youth Policy at the University of California at
Berkeley.
JOHN GOTTMAN is professor emeritus of psychology at the University of
Washington.
RON HASKINS is a senior fellow in the Economic Studies Program and co-
director of the Center on Children and Families at the Brookings
Institution, and a senior consultant at the Annie E. Casey Foundation.
SER 4
Page 5
ROBERT I. LERMAN is an institute fellow at the Urban Institute and pro-
fessor of economics at American University.
LINDA MALONE-COLN is chair of the Department of Psychology and
executive director of the National Center on African American Marriages
and Parenting at Hampton University.
LOREN MARKS holds the Kathryn Norwood and Claude Fussell Alumni
Professorship and is associate professor of family studies at Louisiana
State University.
ROB PALKOVITZ is professor of human development and family studies
at the University of Delaware.
DAVID POPENOE is professor emeritus of sociology at Rutgers
University.
MARK D. REGNERUS is associate professor of sociology at the University
of Texas at Austin.
SCOTT STANLEY is a research professor and co-director of the Center for
Marital and Family Studies at the University of Denver.
LINDA WAITE is the Lucy Flower Professor of Sociology at the University
of Chicago.
JUDITH WALLERSTEIN is senior lecturer emerita at the School of Social
Welfare at the University of California at Berkeley.
SER 5
Page 6
I
N THE LATTER HALF OF THE TWENTIETH CENTURY, divorce posed the
biggest threat to marriage in the United States. Clinical, academic,
and popular accounts addressing recent family changefrom Judith
Wallersteins landmark book, The Unexpected Legacy of Divorce, to Sara
McLanahan and Gary Sandefurs award-winning book, Growing Up with
a Single Parent, to Barbara Dafoe Whiteheads attention-getting Atlantic
article, Dan Quayle Was Rightfocused largely on the impact that
divorce had upon children, and rightly so. In the wake of the divorce
revolution of the 1970s, divorce was the event most likely to undercut
the quality and stability of childrens family lives in the second half of
the twentieth century.
No more. In fact, as divorce rates have come down since peaking in the
early 1980s, children who are now born to married couples are actually
more likely to grow up with both of their parents than were children
born at the height of the divorce revolution (see figure 1). In fact, the
divorce rate for married couples with children has fallen almost to pre-
divorce revolution levels, with 23 percent of couples who married in the
early 1960s divorcing before their first child turned ten, compared to
slightly more than 23 percent for couples who married in the mid 1990s.
Today, the rise of cohabiting households with children is the largest
unrecognized threat to the quality and stability of childrens family lives.
In fact, because of the growing prevalence of cohabitation, which has
risen fourteen-fold since 1970, todays children are much more likely to
spend time in a cohabiting household than they are to see their parents
divorce (see figure 2).
1
Now, approximately 24 percent of the nations children are born to
cohabiting couples, which means that more children are currently born
to cohabiting couples than to single mothers.
2
Another 20 percent or so
of children spend time in a cohabiting household with an unrelated
adult at some point later in their childhood, often after their parents
marriage breaks down.
3
This means that more than four in ten children
are exposed to a cohabiting relationship. Thus, one reason that the insti-
tution of marriage has less of a hold over Americans than it has had for
Why Marriage Matters, Third Edition
Thirty Conclusions from the Social Sciences
Introduction
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Page 7
most our history is that cohabitation has emerged as a powerful alter-
native to and competitor with marriage.
For this reason, the third edition of Why Marriage Matters focuses new
attention on recent scholarship assessing the impact that contemporary
cohabitation is having on marriage, family life, and the welfare of chil-
dren. This edition also picks up on topics that surfaced in the first two
editions of the report, summarizing a large body of research on the
impact of divorce, stepfamilies, and single parenthood on children,
adults, and the larger commonweal. The report seeks to summarize
existing family-related research into a succinct form useful to policy
makers, scholars, civic, business, and religious leaders, professionals,
and others interested in understanding marriage in todays society.
Five New Themes
Children are less likely to thrive in cohabiting households,
compared to intact, married families. On many social, educa-
tional, and psychological outcomes, children in cohabiting house-
holds do significantly worse than children in intact, married families,
and about as poorly as children living in single-parent families. And
when it comes to abuse, recent federal data indicate that children in
cohabiting households are markedly more likely to be physically,
sexually, and emotionally abused than children in both intact, mar-
ried families and single-parent families (see figure 3). Only in the
economic domain do children in cohabiting households fare consis-
tently better than children in single-parent families.
Family instability is generally bad for children. In recent years,
family scholars have turned their attention to the impact that tran-
sitions into and out of marriage, cohabitation, and single parent-
hood have upon children. This report shows that such transitions,
especially multiple transitions, are linked to higher reports of
school failure, behavioral problems, drug use, and loneliness,
among other outcomes. So, it is not just family structure and family
process that matter for children; family stability matters as well. And
the research indicates that children who are born to married par-
ents are the least likely to be exposed to family instability, and to
the risks instability poses to the emotional, social, and educational
welfare of children.
1.
2.
SER 7
Page 8
American family life is becoming increasingly unstable for
children (see figure 4).
4
Sociologist Andrew Cherlin has observed
that Americans are stepping on and off the carousel of intimate rela-
tionships with increasing rapidity.
5
This relational carousel spins par-
ticularly quickly for couples who are cohabiting, even cohabiting
couples with children. For instance, cohabiting couples who have a
child together are more than twice as likely to break up before their
child turns twelve, compared to couples who are married to one
another (see figure 5). Thus, one of the major reasons that childrens
lives are increasingly turbulent is that more and more children are
being born into or raised in cohabiting households that are much
more fragile than married families.
The growing instability of American family life also means
that contemporary adults and children are more likely to live
in what scholars call complex households, where children and
adults are living with people who are half-siblings, stepsiblings, step-
parents, stepchildren, or unrelated to them by birth or marriage.
Research on these complex households is still embryonic, but the ini-
tial findings are not encouraging. For instance, one indicator of this
growing complexity is multiple-partner fertility, where parents have
children with more than one romantic partner. Children who come
from these relationships are more likely to report poor relationships
with their parents, to have behavioral and health problems, and to
fail in school, even after controlling for factors such as education,
income, and race. Thus, for both adults and children, life typically
becomes not only more complex, but also more difficult, when parents
fail to get or stay married.
The nations retreat from marriage has hit poor and working-
class communities with particular force. Recent increases in
cohabitation, nonmarital childbearing, family instability, and family
complexity have not been equally distributed in the United States;
these trends, which first rose in poor communities in the 1970s and
1980s, are now moving rapidly into working-class and lower-middle-
class communities. But marriage appears to be strengthening in more
educated and affluent communities. As a consequence, since the
early 1980s, children from college-educated homes have seen their
family lives stabilize, whereas children from less-educated homes
have seen their family lives become increasingly unstable (see figure
6). More generally, the stratified character of family trends means that
3.
4.
5.
SER 8
Page 9
the United States is devolving into a separate-and-unequal family
regime, where the highly educated and the affluent enjoy strong and
stable [families] and everyone else is consigned to increasingly unstable,
unhappy, and unworkable ones.
6
We acknowledge that social science is better equipped to document
whether certain facts are true than to say why they are true. We can
assert more definitively that marriage is associated with powerful social
goods than that marriage is the sole or main cause of these goods.
A Word about Selection Effects
Good research seeks to tease out selection effects, or the preexisting
differences between individuals who marry, cohabit, or divorce. Does
divorce cause poverty, for example, or is it simply that poor people
are more likely to divorce? Scholars attempt to distinguish between
causal relationships and mere correlations in a variety of ways. The
studies cited here are for the most part based on large, nationally
representative samples that control for race, education, income, and
other confounding factors. In many, but not all cases, social scientists
used longitudinal data to track individuals as they marry, divorce, or
stay single, increasing our confidence that marriage itself matters.
Where the evidence appears overwhelming that marriage causes
increases in well-being, we say so. Where marriage probably does so
but the causal pathways are not as well understood, we are more
cautious.
We recognize that, absent random assignment to marriage, divorce, or
single parenting, social scientists must always acknowledge the possi-
bility that other factors are influencing outcomes. Reasonable scholars
may and do disagree on the existence and extent of such selection
effects and the extent to which marriage is causally related to the better
social outcomes reported here.
Yet, scholarship is getting better in addressing selection effects. For
instance, in this report we summarize three divorce studies that follow
identical and nonidentical adult twins in Australia and Virginia to see
how much of the effects of divorce on children are genetic and how
much seem to be a consequence of divorce itself. Methodological inno-
vations like these, as well as analyses using econometric models, afford
us greater confidence that family structure exercises a causal influence
for some outcomes.
SER 9
Page 10
Departures from the norm of intact marriage do not necessarily harm
most of those who are exposed to them.
7
While cohabitation is associ-
ated with increased risks of psychological and social problems for chil-
dren, this does not mean that every child who is exposed to cohabita-
tion is damaged. For example, one nationally representative study of
six- to eleven-year-olds found that only 16 percent of children in cohab-
iting families experienced serious emotional problems. Still, this rate
was much higher than the rate for children in families headed by mar-
ried biological or adoptive parents, which was 4 percent.
8
While marriage is a social good, not all marriages are equal. Research
does not generally support the idea that remarriage is better for children
than living with a single mother.
9
Marriages that are unhappy do not
have the same benefits as the average marriage.
10
Divorce or separation
provides an important escape hatch for children and adults in violent or
high-conflict marriages. Families, communities, and policy makers inter-
ested in distributing the benefits of marriage more equally must do
more than merely discourage legal divorce.
But we believe good social science, despite its limitations, is a better
guide to social policy than uninformed opinion or prejudice. This report
represents our best judgment of what current social science evidence
reveals about marriage in our social system.
SER 10
Page 11
The intact, biological, married family remains the gold stan-
dard for family life in the United States, insofar as children are
most likely to thriveeconomically, socially, and psychologically
in this family form.
Marriage is an important public good, associated with a range of
economic, health, educational, and safety benefits that help local,
state, and federal governments serve the common good.
The benefits of marriage extend to poor, working-class, and
minority communities, despite the fact that marriage has weakened
in these communities in the last four decades.
F
AMILY STRUCTURE AND PROCESSES are only one factor contributing to
child and social well-being. Our discussion here is not meant to
minimize the importance of other factors, such as poverty, child
support, unemployment, teenage childbearing, neighborhood safety, or
the quality of education for both parents and children. Marriage is not
a panacea for all social ills. For instance, when it comes to child well-
being, research suggests that family structure is a better predictor of
childrens psychological and social welfare, whereas poverty is a better
predictor of educational attainment.
11
But whether we succeed or fail in building a healthy marriage culture
is clearly a matter of legitimate public concern and an issue of para-
mount importance if we wish to reverse the marginalization of the most
vulnerable members of our society: the working class, the poor, minori-
ties, and children.
1.
2.
3.
Our Fundamental Conclusions
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Page 12
The Thirty Conclusions: A Snapshot
Marriage increases the likelihood that fathers and mothers have
good relationships with their children.
Children are most likely to enjoy family stability when they are
born into a married family.
Children are less likely to thrive in complex households.
Cohabitation is not the functional equivalent of marriage.
Growing up outside an intact marriage increases the likelihood
that children will themselves divorce or become unwed parents.
Marriage is a virtually universal human institution.
Marriage, and a normative commitment to marriage, foster high-
quality relationships between adults, as well as between parents
and children.
Marriage has important biosocial consequences for adults and
children.
Family
Divorce and unmarried childbearing increase poverty for both
children and mothers, and cohabitation is less likely to alleviate
poverty than is marriage.
Married couples seem to build more wealth on average than
singles or cohabiting couples.
Marriage reduces poverty and material hardship for disadvan-
taged women and their children.
Minorities benefit economically from marriage also.
Married men earn more money than do single men with similar
education and job histories.
Parental divorce (or failure to marry) appears to increase childrens
risk of school failure.
Parental divorce reduces the likelihood that children will graduate
from college and achieve high-status jobs.
Economics
9.
10.
11.
12.
13.
14.
15.
1.
2.
3.
4.
5.
6.
7.
8.
SER 12
Page 13
Children who live with their own two married parents enjoy
better physical health, on average, than do children in other
family forms.
Parental marriage is associated with a sharply lower risk of
infant mortality.
Marriage is associated with reduced rates of alcohol and sub-
stance abuse for both adults and teens.
Married people, especially married men, have longer life
expectancies than do otherwise similar singles.
Marriage is associated with better health and lower rates of
injury, illness, and disability for both men and women.
Marriage seems to be associated with better health among
minorities and the poor.
Physical Health and Longevity
Children whose parents divorce have higher rates of psycho-
logical distress and mental illness.
Cohabitation is associated with higher levels of psychological
problems among children.
Family breakdown appears to increase significantly the risk of
suicide.
Married mothers have lower rates of depression than do single
or cohabiting mothers.
Mental Health and Emotional Well-Being
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
Boys raised in non-intact families are more likely to engage in
delinquent and criminal behavior.
Marriage appears to reduce the risk that adults will be either
perpetrators or victims of crime.
Married women appear to have a lower risk of experiencing
domestic violence than do cohabiting or dating women.
A child who is not living with his or her own two married parents
is at greater risk of child abuse.
There is a growing marriage gap between college-educated
Americans and less-educated Americans.
Crime and Domestic Violence
26.
27.
28.
29.
30.
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Page 14
Family
Marriage increases the likelihood that fathers and
mothers have good relationships with their children.
Mothers as well as fathers are affected by the absence of marriage. Single
mothers on average report more conflict with and less monitoring of their
children than do married mothers.
12
As adults, children from intact mar-
riages report being closer to their mothers on average than do children of
divorce.
13
In one nationally representative study, 30 percent of young adults
whose parents divorced reported poor relationships with their mothers,
compared to 16 percent of children whose parents stayed married.
14
But childrens relationships with their father depend even more on mar-
riage than do childrens relationships with their mother. Sixty-five per-
cent of young adults whose parents divorced had poor relationships
with their fathers (compared to 29 percent from non-divorced fami-
lies).
15
On average, children whose parents divorce or never marry see
their fathers less frequently
16
and have less affectionate relationships
with their fathers
17
than do children whose parents got and stayed mar-
ried. Studies of children of divorce suggest that losing contact with their
father in the wake of a divorce is one of the most painful consequences
of divorce.
18
Divorce appears to have an even greater negative effect on
relationships between fathers and their children than remaining in an
unhappy marriage.
19
These detrimental relationship effects may be long-
term; unpartnered disabled elderly individuals who divorced receive
less in the way of social support and practical assistance from their chil-
dren than those who were widowed. Those who remarried were less
likely to receive cash transfers from their children.
20
Some evidence suggests even cohabiting, biological fathers who live
with their children are not as involved and affectionate with their chil-
dren as are married, biological fathers who reside with their children,
21
although others have found no difference between these types of
fathers or even a positive effect of cohabitation.
22
Even so, the effect of
marriage on higher-quality parenting practices is even stronger for
social fathers (i.e., stepfathers) than for biological fathers.
23
And fathers
who are married to the mother of their children prior to birth are much
more likely to maintain a long-term relationship with their children than
fathers who are not married at birth.
24
The Thirty Conclusions
1.
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Page 15
Children are most likely to enjoy family stability when
they are born into a married family.
There is an emerging scholarly consensus that family stability in and of
itself is linked to positive child outcomes.
25
By contrast, children who
are exposed to family transitionsfrom a divorce to the breakup of a
mothers romantic relationship with a live-in boyfriendare more likely
to experience behavioral problems, drug use, problems in school, early
sex, and loneliness. The evidence also suggests that multiple transitions
(where children are exposed to more than one breakup or new rela-
tionship) are especially harmful for children.
26
Family transitions are thought to harm a mothers ability to interact pos-
itively with her child(ren) by affecting her economic, social, and psy-
chological resources. They also necessitate the establishment of new
routines and relationships that may be difficult for children to navigate.
27
Selection may also be at work; that is, pre-existing maternal attributes
made lead both to multiple union transitions and poor child outcomes,
though selection does not appear to tell the whole story.
28
Children born to married parents are the most likely to enjoy family
stability over their childhood. According to data from the Fragile
Families and Child Wellbeing Study, which follows children in twenty
cities around the U.S., only 13 percent of children born to married par-
ents experience a maternal partnership transition (i.e., the end or start
of a relationship) by age 3, compared to 50 percent of those born to
cohabiting parents, 69 percent of those born to visiting (i.e., dating
but not cohabiting) parents, and 74 percent of those born to a single
mother (i.e., a mother no longer in a romantic relationship with the
father).
29
Indeed, a number of studies suggest that cohabitation in a range of
cultural and national contexts is less stable than marriage.
30
Latino
and African American children born into cohabiting unions were
more likely to see their parents break up than their peers who were
born to married parents.
31
Cohabitations are unstable not just in the
United States. In one study of seventeen Western countries, parental
cohabitation was associated with higher risk of parental separation,
even in Sweden where parental cohabitation is very common
(although the difference between parental cohabitation and marriage
in Sweden is less pronounced than in other countries).
32
In fact, one
new study of family instability in Sweden found that children born to
cohabiting couples are more than 70 percent more likely to see their
2.
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Page 16
parents separate by age fifteen, compared to children born to married
couples.
33
Unfortunately, in part because childbearing and childrearing in a
cohabiting household is becoming more common in the United States,
family stability has declined for children in the United States over the
course of the last three decades even though the divorce rate has
declined.
34
This overall decline in family stability for children is partic-
ularly striking because children born to married couples now enjoy
more stability than they did thirty years ago. This decline is also strik-
ing because the deinstitutionalization of marriage has largely been lim-
ited to working-class and poor communities in the United States. For
both economic and cultural reasons, more educated and affluent
Americans are now markedly more likely to succeed in marriage than
their less privileged fellow citizens.
35
This means that children in poor
and working-class communities are triply disadvantaged: they have
fewer economic resources, their parents are less likely to be married,
and they are more likely to be exposed to numerous family transitions
over the course of their lives.
Children are less likely to thrive in complex households.
Over the last four decades, increases in divorce, cohabitation, and
nonmarital childbearing have increased the prevalence of complex
householdswhere children share a household with stepsiblings,
half-siblings, stepparents, or with adults with whom they are unrelated
by marriage, adoption, or blood. Children are more likely to suffer
economically, psychologically, and socially when they live in complex
households, in part because such households often do not have clear
norms, boundaries, and a clear family identity to provide stability,
direction, and purpose to their members, and to the relationships
within these households.
Research indicates that children in stepfamilies are more likely to expe-
rience school failure, delinquency, teenage pregnancy, and incarcera-
tion than children growing up in intact, married families.
36
This is in
part, as Andrew Cherlin has pointed out, because stepfamilies are
incomplete institutions that have fewer commonly understood norms,
roles, and rituals than intact, married families.
37
As a consequence, step-
parents often have more difficulty relating to their stepchildren than do
biological parents, which is one reason that stepchildren are less likely
to thrive than children from intact, married families.
3.
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Page 17
Children whose parents have engaged in multiple-partner fertility
(MPF), where adults have children with two or more partners, have
similar problems. Because MPF can be associated with baby mama
drama (i.e., conflict between former romantic partners or spouses
who had a child together, or between one of them and a new romantic
partner of the other partner or spouse), and because it is practically
difficult for mothers and fathers to invest financially, emotionally, and
temporally in children across different households, children from such
MPF families are more likely to suffer health problems, externalizing
behaviors such as fighting, lower academic achievement, and lower
quality relationships with their parents, compared to children in intact,
married families.
38
Interestingly, even children living in a family with their own biolog-
ical, married parents appear to be more likely to suffer if they are
exposed to complexity, in the form of step- or half-siblings located
in their own household. New research suggests that children living
with their married biological parents were more likely to fail in
school, to suffer from depression, and to engage in delinquent
behavior if they live with stepsiblings from a parents prior union.
39
This is probably because the stresses of stepfamily living and the
challenges of supporting a former spouse can undercut the parenting
of mothers and fathers who head up a blended family. This new
research provides more evidence that children are more likely to
thrive when their parents succeed in channeling their reproductive
lives into one marriage.
Cohabitation is not the functional equivalent of marriage.
As a group, cohabitors in the United States more closely resemble sin-
gles than married people, though cohabitation is an exceptionally het-
erogenous status, with some partners treating it as a prelude to mar-
riage, others as an alternative to marriage, others as an opportunity to
test for marriage, and still others as a convenient dating relationship.
40
Adults who live together are more similar to singles than to married
couples in terms of physical health
41
and emotional well-being and
mental health,
42
as well as in assets and earnings.
43
Children with cohabiting parents have outcomes more similar to
the children living with single (or remarried) parents than chil-
dren from intact marriages.
44
In other words, children living in
cohabiting unions do not fare as well as children living in intact,
4.
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Page 18
married families. For instance, one recent study found that
teenagers living in cohabiting unions were significantly more
likely to experience behavioral and emotional difficulties than
were teenagers in intact, married families, even after controlling
for a range of socioeconomic and parenting factors.
45
Another
problem is that cohabiting parents are less likely to devote their
financial resources to childrearing. One study found that cohab-
iting parents devoted a larger share of their income to alcohol
and tobacco, and a smaller share of their income to childrens
education, compared to married parents.
46
Selection effects account for a portion of the difference between
married people and cohabitors. As a group, cohabitors (who are not
engaged) have lower incomes and less education.
47
Couples who
live together also, on average, report relationships of lower quality
than do married coupleswith cohabitors reporting more conflict,
more violence, and lower levels of satisfaction and commitment.
48
This lower relationship quality among cohabitors explains their
higher levels of depression compared to married individuals.
49
Even
biological parents who cohabit have poorer quality relationships
and are more likely to part than parents who marry.
50
Cohabitation differs from marriage in part because Americans
who choose solely to live together are less committed to each
other as partners and their future together.
51
Partly as a conse-
quence, cohabiting couples are less likely than married couples
to pool their income.
52
Another challenge confronting cohabiting
couples is that partners often disagree about the nature and
future of their relationshipfor instance, one partner may antic-
ipate marriage and the other partner may view the relationship
as a covenient form of dating.
53
New research also suggests that
the instability and lower levels of commitment associated with
cohabitation can be deleterious for the elderly, who appear to
be more likely to be institutionalized or abandoned if they are
cohabiting rather than married.
54
In a society that still largely reveres marriageeven if marriages
are less and less likely to happennonmarriage often means
something relative to marriage. Marriage is a clear, mutual, non-
ambiguous signal of commitment; in contrast, cohabitation is
widely recognized as ambiguous when it comes to signaling
commitment in the absence of some other strong signal of mar-
ital intention such as engagement.
55
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Page 19
Growing up outside an intact marriage increases the likeli-
hood that children will themselves divorce or become
unwed parents.
Children whose parents divorce or fail to marry are more likely to
become young unwed parents, to enter their marriages with lower
commitment, to experience divorce themselves someday, to marry as
teenagers, and to have unhappy marriages and/or relationships.
56
Daughters raised outside of intact marriages are approximately three
times more likely to end up young, unwed mothers than are children
whose parents married and stayed married.
57
Parental divorce increas-
es the odds that adult children will also divorce by at least 50 percent,
partly because children of divorce are more likely to marry prematurely
and partly because children of divorce often marry other children of
divorce, thereby making their marriage even more precarious.
58
Divorce is apparently most likely to be transmitted across the genera-
tions when parents in relatively low-conflict marriages divorced.
59
There is ongoing debate about whether the link between parental and
offspring divorce has weakened over time (as divorce rates increased
up through the early 1980s and then fell slightly), but there is consensus
that this association remains significant.
60
Moreover, remarriage does
not appear to help children. For instance, girls in stepfamilies are
slightly more likely to have a teenage pregnancy compared to girls in
a single-parent family, and much more likely to have a teenage preg-
nancy than girls in an intact, married family.
61
Children who grow up
in stepfamilies are also more likely to marry as teenagers, compared to
children who grow up in single-parent or intact, married families.
62
Finally, research also indicates that the effects of divorce cross three
generations: that is, grandchildren of couples who divorced are signif-
icantly more likely to experience marital discord, negative relationships
with their parents, and low levels of educational attainment, compared
to grandchildren whose grandparents did not divorce.
63
Marriage is a virtually universal human institution.
Marriage exists in virtually every known human society.
64
The shape of
marriage varies considerably in different cultural contexts, but at least
since the beginning of recorded historyin all the flourishing varieties
of human cultures documented by anthropologistsmarriage has been
a universal human institution. As a virtually universal human idea, mar-
riage involves regulating the reproduction of children, families, and
society. While marriage systems differ (and not every person or class
6.
5.
SER 19
Page 20
within a society marries), marriage across societies is a publicly
acknowledged and supported sexual union that creates kinship obliga-
tions and resource pooling between men, women, and the children that
their sexual union may produce.
Marriage, and a normative commitment to marriage,
foster high-quality relationships between adults, as well
as between parents and children.
Some say that love, not marriage, makes a family. They argue that family
structure per se does not matter; rather, what matters is the quality of
family relationships.
65
Others argue that the marital ethic of lifelong
commitment needs to be diluted if we seek to promote high-quality
relationships; instead, the new marital ethic should be conditional, such
that spouses should remain together only so long as they continue to
love one another.
66
However, these arguments overlook what we know about the
effect of marriage, and a normative commitment to the institution
of marriage, on intimate relationships. By offering legal and nor-
mative support and direction to a relationship, by providing an
expectation of sexual fidelity and lifelong commitment, and by fur-
nishing adults a unique social status as spouses, marriage typical-
ly fosters better romantic and parental relationships than alterna-
tives to marriage.
67
For all these reasons, in part, adults who are
married enjoy happier, healthier, and less violent relationships,
compared to adults who are in dating or cohabiting relationships.
68
Even among older adults who were previously married, remarriage
seems to lead to happier relationships than cohabitation, though
differences on several other aspects of relationship quality are not
evident.
69
Parents who are married enjoy more supportive and less
conflictual relationships with one another, compared to parents
who are cohabiting or otherwise romantically involved with one
another.
70
In turn, as we have seen, married parents generally have
better relationships with their children than do cohabiting,
divorced, unmarried, or remarried parents.
71
Some of the associa-
tions between family structure and family process are products of
selectionthat is, couples with better relationships are more likely
to get and stay married. But, as this report makes clear, the
research also suggests that social, legal, and normative supports
provided by marriage foster better intimate relationships and parent-
child relationships.
7.
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Page 21
But so does the idea of marriage. Individuals who value the institution
of marriage for its own sakethat is, who oppose easy divorce, who
believe that children ought to be born into marriage, and who think
marriage is better than cohabitationare more likely to invest them-
selves in their marriages and to experience high-quality marital rela-
tionships. Ironically, individuals who embrace a conditional ethic to
marriagethat is, one that suggests marriages ought to continue only
so long as both spouses are happyare less happy in their marriages.
One longitudinal study found that individuals who oppose divorce are
more likely to devote themselves to their spouse, even after controlling
for the initial quality of the marriage.
72
Two studies show that spouses,
particularly husbands, are more likely to sacrifice for their spouse if they
are strongly committed to the future of their marriages.
73
A recent study
finds that womens marital happiness, and their reports of happiness
with their husbands affection and understanding, are strongly and pos-
itively linked to high levels of shared spousal commitment to pro-mar-
riage norms.
74
Another study found that fathers who are normatively
commited to marriage are significantly more likely to praise and hug
their children than fathers who are not committed to marriage.
75
Scholars speculate that a strong normative commitment to marriage
makes married adults less likely to look for alternative partners and
more conscious of the long-term character of their relationship, both of
which encourage them to invest more in their current relationship.
76
Thus, adults who hold a strong normative commitment to marriage
appear to enjoy higher-quality relationships with family members, com-
pared to adults who are not strongly committed to the institution of
marriage.
Marriage has important biosocial consequences for
adults and children.
Marriage has biological consequences for adults and children. We are
just beginning to discover the myriad ways that marriage seems to pro-
mote good outcomes in what social scientists call the biosocial area of
lifethe connection between our social relationships and how our bod-
ies function. In the last decade, two marriage-related biosocial outcomes
have emerged as particularly important.
First, marriage appears to reduce mens testosterone levels. More than
five studies analyzing different populations find that married men (espe-
cially married fathers) have lower testerone levels than similar men who
are never-married or divorced.
77
For this outcome, however, cohabiting
8.
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men appear to be affected just as much as are married men. What seems
to matter for mens testorone levels are intimate, ongoing, and everyday
relationships with one woman.
78
Given that testosterone is associated
with aggression, sensation-seeking, and a range of other antisocial
behaviors, one of the ways that marriage may influence men is by reduc-
ing their levels of testosterone.
79
Of course, there may be selection effects
at work: that is, it may be that men with lower levels of testosterone are
less likely to engage in antisocial behavior and more likely to marry. The
two longitudinal studies done so far have obtained mixed results. One
strongly suggests that, for men, marriage plays a causal role in driving
down testosterone (as well as cortisol).
80
The other has found no effect
of becoming partnered (defined as a long-term monogamous relation-
ship) on mens testosterone level.
81
Future research will have to further
unpack the relationships between marriage, testosterone, fatherhood,
and antisocial behavior among men.
Second, girls appear to benefit in their sexual development from grow-
ing up in an intact, married family. Extensive research by psychologist
Bruce Ellis and others indicates that adolescent girls who grow up apart
from an intact, married household are significantly more likely to have
early menstruation, premature sexual activity, and a teenage pregnancy.
82
He finds that girls who have close, engaged relationships with their
fathers have menstruation at a later age and that girls who lose their bio-
logical father as young children have menstruation at an earlier age.
Moreover, girls who live with an unrelated male (e.g., stepfather, moth-
ers boyfriend) have menstruation even earlier than girls living in a sin-
gle-mother household. Ellis speculates that girls sexual development is
influenced by the male pheromonesbiological chemicals that individ-
uals emit to one another, which have been associated with accelerated
sexual development in mammalsthey encounter in their social envi-
ronment. The pheromones of their father appear to inhibit premature
sexual development, while the pheromones of an unrelated male appear
to accelerate such development. In Elliss words: These findingsare
broadly consistent with the hypothesis that pheromonal exposure to the
biological father inhibits pubertal development in daughters.
83
Early sexual development, in turn, is associated with significantly high-
er levels of premature sexual activity and teenage pregnancy on the part
of girls, even after controlling for economic and psychological factors in
the household that might otherwise confound the relationship between
family structure and girls sexual activity.
84
So this line of research
strongly suggests that an intact, married household protects girls from
premature sexual development and, consequently, teen pregnancy. One
SER 22
Page 23
genetically-informed study, however, suggests that much of this associa-
tion may be due to selection into family structure by genetic predisposi-
tion (i.e., both mother and daughter have an underlying biological make-
up that makes them more likely to have early menstruation). In a study
of children of sisters, including twin sisters, there was no difference in
age at first sex for the offspring of twin sister dyads where one child had
a father in the home and the other did not, but there was for the children
of non-twin sisters.
85
Future research will have to determine if genes,
environment, or some combination thereof account for the association
between father absence and early menstruation among adolescent girls.
Economics
Divorce and unmarried childbearing increase poverty for
both children and mothers, and cohabitation is less likely
to alleviate poverty than is marriage.
Research has consistently shown that both divorce
86
and unmarried
childbearing
87
increase the economic vulnerability of both children and
mothers. The effects of family structure on poverty remain powerful,
even after controlling for race and family background. Changes in family
structure are an important cause of new entries into poverty (although
a decline in the earnings of the household head is the single most
important cause). Child poverty rates are high in part because of the
growth of single-parent families.
88
In fact, some studies indicate that all
of the increase in child poverty since the 1970s can be attributed to
increases in single parenthood due to divorce and nonmarital child-
bearing.
89
When parents fail to marry and stay married, children are
more likely to experience deep and persistent poverty, even after con-
trolling for race and family background. The majority of children who
grow up outside of intact, married families experience at least one year
of dire poverty (family incomes less than half the official poverty thresh-
old).
90
Divorce as well as unmarried childbearing plays a role: between
one-fifth and one-third of divorcing women end up in poverty follow-
ing the divorce.
91
Cohabitation does not alleviate poverty as well as mar-
riage does. The ratio of income to needs for children in cohabiting fam-
ilies is .43 points lower than that of those in married families.
92
The effect of divorce on womens incomes persists in contemporary
America, but it appears to have lessened since 1980 as womens labor
market position has improved.
93
Single mothers income gains have
been only marginal across the same time period.
94
9.
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Married couples seem to build more wealth on average
than singles or cohabiting couples.
Marriage seems to be a wealth-creating institution. Married couples
build more wealth on average than do otherwise similar singles or
cohabiting couples, even after controlling for income.
95
Analysis of the
National Longitudinal Survey of Youth (1979 cohort), which tracked
respondents from adolescence to their early forties, reveals that the per
person net worth of married individuals is 93 percent higher than it is
for single individuals, and divorced individuals have a per person net
worth 77 percent lower than single respondents.
96
The economic advan-
tages of marriage stem from more than just access to two incomes.
Marriage partners appear to build more wealth for some of the same
reasons that partnerships in general are economically efficient, includ-
ing economies of scale and specialization and exchange. Marital social
norms that encourage healthy, productive behavior and wealth accu-
mulation (such as buying a home) also appear to play a role. Married
parents also more often receive wealth transfers from both sets of
grandparents than do cohabiting couples; single mothers almost never
receive financial help from the childs fathers kin.
97
Interestingly, the
effect of fatherhood on asset accumulation varies by marital status: mar-
ried fathers increased their rate of asset accumulation after becoming
fathers while unmarried fathers saw their rate of asset accumulation
decline.
98
Marriage reduces poverty and material hardship for dis-
advantaged women and their children.
A growing body of research by economist Robert I. Lerman and others
indicates that the economic benefits of marriage extend even to women
who come from disadvantaged backgrounds. Focusing on low-income
families, Lerman found that married couples with children generally had
lower levels of material hardshipthat is, they were less likely to miss
a meal or fail to pay their utilities, rent, or mortgagecompared to
other families, especially single-mothers living alone.
99
In another study,
he found that mothers with low academic abilities who married saw
their living standards end up about 65 percent higher than similar single
mothers living with no other adult, over 50 percent higher than single
mothers living with another adult, and 20 percent higher than mothers
who were cohabiting.
100
Other research has found that disadvantaged
mothers are significantly less likely to be in poverty if they had their first
child in marriage, compared to similar mothers who had their first child
10.
11.
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out-of-wedlock. This research found that 35 percent of disadvantaged
African American mothers who had a nonmarital first birth are below
the poverty line, compared to 17 percent of African American mothers
who had a marital first birth. The protective effect of marriage is even
stronger among women at high risk of poverty versus those at low
risk.
101
Why is marriage more likely to help poor women and children than
cohabitation? Married couples appear to share more of their income and
other property, they get more support from extended families and
friends, and they get more help from civic institutions (churches, food
pantries, etc.).
102
There are two caveats to this work. First, marriage does
not produce as many benefits for women who have a premarital birth.
103
Second, marriage also does not produce much of an economic boost for
women who go on to divorce, and divorce is more common among
women with comparatively low levels of income and education.
104
So
women, particularly poor women, do not much benefit economically
from marriage unless their marriages are stable.
Minorities benefit economically from marriage also.
The economic benefits associated with marriage are not limited to
whites. Research also suggests that African Americans and Latinos ben-
efit materially from marriage. Studies find marriage effects at the com-
munity and individual levels. At the societal level, black child poverty
rates would be almost 20 percent lower than they currently are had the
proportion of black children living in married families not fallen below
1970 levels.
105
At the individual level, one study found that black single mothers who
marry see their income rise by 81 percent (compared to an income
increase of 45 percent for white single mothers). This same study found
that the income of black children fell by 53 percent two years after a
divorce.
106
Another study of older women indicates that married African
American women enjoy significantly more income than their widowed,
divorced, and never married peers.
107
Both black and Hispanic older
women experience declines in household income and assets following
marital disruption, be it divorce or widowhood.
108
Black men who marry
also see a significant increase in their income, about $4000 according to
one estimate.
109
Black men see bigger increases in their household
incomes than do white men (increases of 31 percent and 23 percent,
respectively) because black women are more likely to work than white
12.
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women.
110
Finally, African Americans and Latinos who are married also
enjoy significantly higher levels of household equity, compared to their
peers who are not married.
111
Married men earn more money than do single men with
similar education and job histories.
A large body of research, both in the United States and other developed
countries, finds that married men earn between 10 and 40 percent more
than do single men with similar education and job histories.
112
While
selection effects may account for part of the marriage premium (insofar
as men with more stable and better-paying jobs are more likely to
marry),
113
the most sophisticated, recent research appears to confirm that
marriage itself increases the earning power of men on the order of 21
to 24 percent.
114
A study of identical twin pairs, which was able to
account more rigorously for selection effects, similarly found an earn-
ings increase of 26 percent.
115
Why do married men earn more? The causes are not entirely under-
stood, but married men appear to have greater work commitment, more
strategic approaches to job searches, and healthier and more stable per-
sonal routines (including sleep, diet, and alcohol consumption). One
study found that married men were more likely to quit with a new job
in hand, less likely to quit without a new job in hand, and less likely to
be fired, compared to unmarried men.
116
Husbands also benefit from
both the work effort and emotional support that they receive from
wives.
117
A study of German men finds that married men may also be
less content with their earnings, which may spur them to work harder
and earn higher wages.
118
All of the findings along these lines are consistent with the larger propo-
sition advanced by sociologist Steven Nock that men undergo an impor-
tant average transformation in their sense of themselves and their
responsibilities in the transition from nonmarriage to marriage.
119
Parental divorce (or failure to marry) appears to increase
childrens risk of school failure.
Parental divorce or nonmarriage has a significant, long-term negative
impact on childrens educational attainment. Children of divorced or
unwed parents have lower grades and other measures of academic
13.
14.
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Page 27
achievement, are more likely to be held back, and are more likely to
drop out of high school. The effects of parental divorce or nonmarriage
on childrens educational attainment remain significant even after con-
trolling for race, family background, and genetic factors.
120
Another
nationally-representative study of more than 1,000 adolescents that con-
trolled for differences in parental education and income found that
teenagers were 60 percent less likely to graduate from high school if
they came from cohabiting families, compared to their peers who came
from intact, married families.
121
Likewise, kindergarteners living with
cohabiting parents have lower reading, math, and general knowledge
scoreswhether they are living with their biological cohabiting parents
or one parent and a cohabiting partner. The differences in math and
general knowledge are explained by differences in parenting practices
and maternal depression, but differences in reading ability remain even
after having accounted for these factors.
122
Adolescents who live in
stable cohabiting families become less engaged in school than those in
stable biological married families, single-mother families, or married
stepfamilies. Those in single-mother families have decreased engage-
ment compared to those in stable biological married families.
Transitioning into a cohabiting family lowers school engagement as
well, as does transitioning from a cohabiting family to a married step-
family.
123
Indeed, family transitions in general have been linked to poor-
er academic achievement,
124
and both family structure and transitions
appear to matter for educational outcomes.
125
Children whose parents
divorce end up with significantly lower levels of education than do chil-
dren in single-mother families created by the death of the father.
126
Children whose parents remarry do no better, on average, than do chil-
dren who live with single mothers.
127
It is not yet clear if the effects of
family structure vary by race. Some studies indicate that African
American educational performance is affected more than white per-
formance by father absence, whereas other studies come to the oppo-
site conclusion.
128
Parental divorce reduces the likelihood that children will
graduate from college and achieve high-status jobs.
Parental divorce appears to have long-term consequences on chil-
drens socioeconomic attainment. While most children of divorce do
not drop out of high school or become unemployed, as adults, chil-
dren of divorced parents have lower occupational status and earnings
and have increased rates of unemployment and economic hardship.
129
They are less likely to attend and graduate from college and also less
15.
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likely to attend and graduate from four-year and highly selective col-
leges, even after controlling for family background and academic and
extracurricular achievements.
130
One reason for this may be that
divorced parents contribute significantly less money to their childrens
college education. While married parents contribute a median of
$1,804 per year to college costs, divorced (and not remarried) parents
contribute just $502, and remarried parents just $500differences that
persist after controlling income and other relevant factors. Divorced
parents may have underreported their ex-spouses contribution, but
even so their contribution is not likely to rise anywhere near the level
of married parents.
131
Physical Health and Longevity
Children who live with their own two married parents
enjoy better physical health, on average, than do children
in other family forms.
Divorce and unmarried childbearing appear to have negative effects
on childrens physical health and life expectancy.
132
Longitudinal
research suggests that parental divorce and cohabitation increase the
incidence of health problems in children.
133
For example, in one
recent longitudinal study the probability that a five-year-old child
with stably-married parents was in excellent health was .69, com-
pared to probabiliies of .65 for those whose parents divorced, .62 for
those whose parents stably cohabited, and .59 for those whose par-
ents dissolved their cohabitation.
134
The health advantages of married
homes remain, even after taking socioeconomic status into account.
Even in Sweden, a country with an extensive social welfare system
and a nationalized health care system, children who grow up outside
an intact family are much more likely to suffer serious disadvantages.
One recent study of the entire Swedish population of children found
that boys who were reared in single-parent homes were more than
50 percent more likely to die from a range of causese.g., suicide,
accidents, or addictionthan boys who were reared in two-parent
homes. Moreover, even after controlling for the socioeconomic status
and psychological health of parents, Swedish boys and girls in single-
parent families were more than twice as likely as children in two-
parent families to suffer from psychiatric diseases, suicide attempts,
alcoholism, and drug abuse; they were also more likely to experience
traffic injuries, falls, and poisonings than their peers in two-parent
families.
135
16.
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The health effects of family structure extend into adulthood. One study
that followed a sample of academically gifted, middle-class children for
seventy years found that parental divorce reduced a childs life
expectancy by four years, even after controlling for childhood health
status and family background, as well as personality characteristics such
as impulsiveness and emotional instability.
136
Another analysis found
that forty-year-old men whose parents had divorced were three times
more likely to die in the next forty years than were forty-year-old men
whose parents stayed married. [I]t does appear, the researchers con-
clude, that parental divorce sets off a negative chain of events, which
contribute to a higher mortality risk among individuals from divorced
homes.
137
Parental marriage is associated with a sharply lower risk
of infant mortality.
Babies born to married parents have lower rates of infant mortality. On
average, having an unmarried mother is associated with an approxi-
mately 50 percent increase in the risk of infant mortality.
138
While
parental marital status predicts infant mortality in both blacks and
whites, the increased risk due to the mothers marital status is greatest
among the most advantaged: white mothers over the age of twenty.
139
The cause of this relationship between marital status and infant mortal-
ity is not well known. There are many selection effects involved:
Unmarried mothers are more likely to be young, black, less educated,
and poor than are married mothers. But even after controlling for age,
race, and education, children born to unwed mothers generally have
higher rates of infant mortality.
140
While unmarried mothers are also less
likely to get early prenatal care,
141
infant mortality rates in these
instances are higher not only in the neonatal period, but through infancy
142
and even early childhood.
143
Children born to unmarried mothers have
an increased incidence of both intentional and unintentional fatal
injuries.
144
The sharp differences in infant mortality between married
women who list a fathers name on the birth certificate and both mar-
ried and unmarried women who dont, compared to the smaller (but
still signficant) difference between married and unmarried women who
list a fathers name on the birth certificate, suggests paternal involve-
ment may be a key factor in avoiding infant mortality and explaining
the marital advantage.
145
Marital status remains a powerful predictor of
infant mortality, even in countries with nationalized health care systems
and strong supports for single mothers.
146
17.
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Marriage is associated with reduced rates of alcohol and
substance abuse for both adults and teens.
Married men and women have lower rates of alcohol consumption and
abuse than do singles (including cohabitors). Longitudinal research con-
firms that young adults, particularly men, who marry tend to reduce
their rates of alcohol consumption and illegal drug use.
147
Children
whose parents marry and stay married also have lower rates of sub-
stance abuse, even after controlling for family background and the
genetic traits of the parents.
148
Twice as many young teens in single-
mother families and stepfamilies have tried marijuana (and young teens
living with single fathers were three times as likely). Young teens whose
parents stay married are also the least likely to experiment with tobacco
or alcohol.
149
Data from the National Household Survey on Drug Abuse
show that, even after controlling for age, race, gender, and family
income, teens living with both biological parents are significantly less
likely to use illicit drugs, alcohol, and tobacco.
150
How does family fragmentation relate to teen drug use? Many pathways
are probably involved, including increased family stress, reduced
parental monitoring, and weakened attachment to parents, especially
fathers.
151
Married people, especially married men, have longer life
expectancies than do otherwise similar singles.
Married people live longer than do otherwise similar people who are
single or divorced.
152
Husbands as well as wives live longer on average,
even after controlling for race, income, and family background.
153
In
most developed countries, middle-aged single, divorced, or widowed
men are about twice as likely to die as married men, and nonmarried
women face risks about one-and-a-half times as great as those faced by
married women.
154
These differences by marital status have persisted
over time, and the differences between married and widowed individ-
uals may even have intensified in recent years.
155
One recent study argues that rather than crude measures of marital sta-
tus, marital historiesthe nexus of marital status, timing, transitions, and
durationare predictive of mortality. Indeed, marital status was the
least robust indicator of longer life, and accumulation of marriage dura-
tion the most robust. Nevertheless, each of these marital factors was
important in predicting survival. The effect of marriage on life expectancy
18.
19.
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begins in young adulthood and accrues across the life course as indi-
viduals remain in, exit, and reenter marital relationships.
156
Thus, even
for adults, the stability of married life across the life course plays an
important role in fostering adult health.
Marriage is associated with better health and lower rates
of injury, illness, and disability for both men and women.
Both married men and women enjoy better health on average than do
single, cohabiting, or divorced individuals.
157
Selection effects regarding
divorce or remarriage may account for part of this differential, although
research has found no consistent pattern of such selection.
158
Married
people appear to manage illness better, monitor each others health,
have higher incomes and wealth, and adopt healthier lifestyles than do
otherwise similar singles.
159
For example, one recent study finds married
men have higher serum carotenoid levels than never-married, divorced,
or widowed men, and married women have higher levels of the same
than do widowed women, suggesting marriage promotes diets higher
in fruit and vegetable intake.
160
A recent study of the health effects of marriage drawn from 9,333
respondents to the Health and Retirement Survey of Americans between
the ages of fifty-one and sixty-one compared the incidence of major dis-
eases, as well as functional disability, in married, cohabiting, divorced,
widowed, and never-married individuals. Without exception, the
authors report, married persons have the lowest rates of morbidity for
each of the diseases, impairments, functioning problems and disabili-
ties. Marital status differences in disability remained dramatic even
after controlling for age, sex, and race/ethnicity.
161
Another study from
the federally-funded Centers for Disease Control found that married
adults were less likely to be in poor health, to have activity limitations,
to have headaches, to suffer serious pyschological distress, to smoke,
and to have a drinking problem, compared to widowed, divorced, and
cohabiting adults.
162
However, studies also suggest that the health effects of marriage vary by
marital quality, especially for women. Research by psychologist Janice
Kiecolt-Glaser and her colleagues indicates that womens health is par-
ticularly likely to suffer when they are in poor-quality relationships and
thrive when they are in high-quality relationships. For instance, negative
marital behaviors (e.g., criticisms, put-downs, sarcasm) are associated
with increased levels of stress hormones (epinepherine, ACTH, and
20.
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norepinephrine), with higher blood pressure, and with declines in
immune functioning.
163
So, particularly for women, marital quality, not
simply marital status, is strongly correlated to better health outcomes.
Moreover, there is a negative effect of poor marital quality on self-rated
health that appears to grow with age,
164
and remaining in a long-term,
low-quality marriage may actually be worse for ones overall health than
getting divorced.
165
Low marital quality has been implicated as one
reason why single mothers who marry do not reap the marital benefits
that childless women who marry do.
166
Marital conflict also appears to be
tied to functional impairment among midlife and older adults.
167
As with studies of marriage and mortality, marital status may not ade-
quately gauge the effect of marital history on physical health. For both
men and women, marriage duration is associated with lower rates of
disease. For women, early marriage (at or before age eighteen) and
number of divorce transitions predict poorer health outcomes; for men,
divorce duration and widowhood transitions are important.
168
But here,
again, the research suggests that a stable, lifelong marriage typically
benefits women and mens health.
Despite the overall health advantages for married individuals, the tran-
sition to marriage is associated with at least one disadvantage: weight
gain.
169
In one recent study, researchers found that those who married
had BMI scores 1.129 units higher, on average, than those who
remained unmarried three years laterthe equivalent of gaining eight
pounds for a person 510 tall and weighing 170 pounds.
170
Both men
and women who marry are more than two times more likely to become
obese than those who are in a non-cohabiting, dating relationship.
171
Here, adults who marry probably feel less pressure to stay fit to attract
or keep a partner, compared to their unmarried peers.
Marriage seems to be associated with better health
among minorities and the poor.
A recent report from the Centers for Disease Control indicates that
African American, Latino, and low-income adults also enjoy health ben-
efits from marriage. African American and Latino adults who are married
are less likely to be in poor health, to have activity limitations, to smoke,
to have a drinking problem, and to suffer serious pyschological distress,
compared to cohabiting, never-married, divorced, and widowed adults
who were African American or Latino. Poor married adults were less
likely to be in poor health, to have activity limitations, to smoke, to have
21.
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Page 33
a drinking problem, or to suffer serious psychological distress, compared
to cohabiting, divorced, and widowed adults. (However, they did not do
consistently better than never-married adults).
172
Nevertheless, marriage
may also increase the risk of obesity for African American women.
173
Marriage also has implications for child health. Studies indicate that
Latino and African American infants are significantly more likely to die
at or around birth, suffer from low birth weight, or be born premature
if they are born outside of marriage.
174
More research needs to be done
on the health consequences of marriage for low-income and minority
populations to confirm and extend these findings.
Mental Health and Emotional Well-Being
Children whose parents divorce have higher rates of psy-
chological distress and mental illness.
In the last four decades, a large body of research on divorce has accu-
mulated that generally indicates that divorce often causes children con-
siderable emotional distress and doubles the risk that they will experi-
ence serious pyschological problems later in life.
175
Children of divorce
are at higher risk for depression and other mental illness over the
course of their lives, in part because of reduced educational attainment,
increased risk of divorce, marital problems, and economic hardship.
176
A twenty-five-year study by psychologist Judith Wallerstein and her col-
leagues found that that the effects of divorce on children crescendoed
as they enter adulthood. Their relationships with the opposite sex were
often impaired by acute fears of betrayal and abandonment, and many
also complained that they had never witnessed a man and a woman in
a happy relationship and doubted that achieving such a relationship
was possible.
177
Indeed, the recent growth of cohabitation flows in part
from the loss of confidence that many children of divorce have in mar-
riage.
178
Having witnessed divorce up close, many young adults are
afraid that they will not achieve lifelong love and they feel handicapped
in their search for love and marriage by their lack of models of a happy
relationship between a man and a woman, their lack of knowledge
about how to resolve differences, and their expectation of betrayal and
abandonment by their lover, wife, or husband.
179
So they cohabit, date,
or hookup instead of marrying.
Since Wallerstein published her pioneering book, Second Chances:
Men, Women, and Children a Decade After Divorce, which suggested
22.
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Page 34
that divorce was associated with a fear of abandonment, sleeplessness,
a rise in aggression, and chronic anxiety among the children of divorce,
a large body of research on divorce has accumulated, which generally
indicates that divorce often causes children considerable emotional dis-
tress and doubles the risk that they will experience serious pyscholog-
ical problems later in life. Children of divorce are at higher risk for
depression and other mental illness over the course of their lives, in part
because of reduced educational attainment, increased risk of divorce,
marital problems, and economic hardship.
The timing of the breakup may matter as well. Family instability prior
to the end of kindergarten (be it divorce or another type of parental
breakup) but not from first through fourth grades heightens externaliz-
ing behavior problems and lowers peer compentency among fifth
graders.
180
There is mixed evidence as to whether these higher rates of psycho-
logical distress are causally related to parental divorce or instead to
some genetic factor(s). Studies from two sitesAustralia and Virginia
conducted by the same research team report very different results. Two
of these studies followed identical and nonidentical twins in Australia
who married and had children. Some of these twins went on to
divorce. By comparing the children of divorce with children from intact
families in this sample, the researchers were able to determine the role
that genetic factors played in fostering psychological problems among
the children of divorce. Specifically, these studies found that children
of divorce were significantly more likely to suffer from depression,
alcohol and drug abuse, delinquency, and thoughts of suicide.
181
In the
researchers own words: The results of the modeling indicated that
parental divorce was associated with young-adult offspring psychopathol-
ogy even when controlling for genetic and common environmental
factors related to the twin parent.
182
However, in a similarly-designed
study of Virginians, the researchers found that the apparent effect of
parental divorce on emotional problems could be attributed to genetic
differences among parents who divorced, even as genetics did not
explain the association between parental divorce and alcohol problems.
183
The researchers note that cross-cultural differences, measurement dif-
ferences, or sampling differences may account for the discrepancy.
There is some additional evidence that the psychological effects of
divorce differ depending on the level of conflict between parents prior
to divorce. When marital conflict is high and sustained, children benefit
psychologically from divorce. When marital conflict is low, children
SER 34
Page 35
suffer psychologically from divorce. Unfortunately, about two-thirds of
divorces appear to be taking place among low-conflict spouses.
184
Cohabitation is associated with higher levels of psycho-
logical problems among children.
Studies find that children in cohabiting families are significantly more
likely to experience depression, difficulty sleeping, feelings of worth-
lessness, nervousness, and tension, compared to children in intact, mar-
ried households.
185
For example, one nationally-representative study of
six- to eleven-year-olds found that 15.7 percent of children in cohabit-
ing families experienced serious emotional problems (e.g., depression,
feelings of inferiority, etc.), compared to just 3.5 percent of children in
families headed by married biological or adoptive parents.
186
Kindergartners in cohabiting stepfamilies report more sadness and lone-
liness than those who live with their married biological parents. Those
who cohabit with their biological parents do not differ from those who
live with their married parents. Both types of cohabiting families, how-
ever, are associated with lower levels of self-control among kindergart-
ners.
187
Adolescents in stably cohabiting stepfamilies experience more
increases in depression than their counterparts in stable biological par-
ent families, and transitioning from a cohabiting stepfamily to a married
stepfamily also appears to increase depression among adolescents.
188
The effect of cohabitation may be contingent on its social institutional-
ization. For example, children born born to Latina mothers in countries
where cohabitation is more prevalent and accepted exhibit less exter-
nalizing behavioral problems than those born in countries where it is
less institutionalized.
189
But, in the United States at least, cohabitation is
a risk factor for childrens mental health.
Family breakdown appears significantly to increase the
risk of suicide.
High rates of family fragmentation are associated with an increased risk
of suicide among both adults and adolescents.
190
Divorced men and
women are more than twice as likely as their married counterparts to
attempt suicide.
191
Married individuals were also substantially less likely
to commit suicide than were divorced, widowed, or never-married
individuals.
192
In the last half-century, suicide rates among teens and
23.
24.
SER 35
Page 36
young adults have tripled. The single most important explanatory vari-
able, according to one new study, is the increased share of youths liv-
ing in homes with a divorced parent. The effect, note the researchers,
is large, explaining as much as two-thirds of the increase in youth
suicides over time.
193
Another study suggests that if family structure
remained as it was in 1970, 179,000 fewer children per year would con-
sider suicide and 71,000 fewer children would attempt suicide.
194
Married mothers have lower rates of depression than do
single or cohabiting mothers.
The absence of marriage is a serious risk factor for maternal depression.
Married mothers have lower rates of depression than do cohabiting or
single mothers. Cohabiting mothers are more likely to be depressed
because they are much less confident that their relationship will last,
compared to married mothers.
195
Married mothers also perceive that they
receive more support from their child(ren)s father.
196
Single mothers are
more likely to be depressed by the burdens associated with parenting
alone. One study of 2,300 urban adults found that, among parents of
preschoolers, the risk of depression was substantially greater for unmar-
ried as compared to married mothers.
197
Single mothers who marry (and
remain married), moreover, receive the same mental health benefits as
childless women who marry.
198
Marriage protects even older teen moth-
ers from the risk of depression. In one nationally representative sample
of eighteen- and nineteen-year-old mothers, 41 percent of single white
mothers having their first child reported high levels of depressive symp-
toms, compared to 28 percent of married white teen mothers in this age
group.
199
Longitudinal studies following young adults as they marry, divorce, and
remain single indicate that marriage boosts mental and emotional well-
being for both men and women.
200
We focus on maternal depression
because it is both a serious mental health problem for women and a
serious risk factor for children.
201
Not only are single mothers more likely
to be depressed, the consequences of maternal depression for child
well-being are greater in single-parent families, probably because single
parents have less support and because children in disrupted families
have less access to their (nondepressed) other parent.
202
One study found that single mothers who are no longer in a romantic
relationship (of any kind) with their childs father one year after the
birth exhibit the most mental health problems, but even those who are
25.
SER 36
Page 37
cohabiting with the father or in a romantic, non-cohabiting relationship
with the father have more mental health problems than married moth-
ers. In this study, about 29 percent of mothers who were no longer in
a romantic relationship with their childs father report at least one mental
health problem, compared to 24 percent of those in a romantic, non-
cohabiting relationship, 23 percent of those in a cohabiting relationship,
and 16 percent of those who were married. These differences persisted
even after controls for relevant background characteristics.
203
Crime and Domestic Violence
Boys raised in non-intact families are more likely to
engage in delinquent and criminal behavior.
Even after controlling for factors such as race, mothers education,
neighborhood quality, and cognitive ability, one recent study found that
boys raised in single-parent homes are about twice as likely (and boys
raised in stepfamilies are more than two-and-a-half times as likely) to
have committed a crime that leads to incarceration by the time they
reach their early thirties. (The study found that slightly more than 7 per-
cent of boys were incarcerated at some point between the ages of fif-
teen and thirty.)
204
Teens in both one-parent and remarried homes display more deviant
behavior and commit more delinquent acts than do teens whose par-
ents stayed married.
205
Teens in one-parent families are on average less
attached to their parents opinions and more attached to their peer
groups. Combined with lower levels of parental supervision, these atti-
tudes appear to set the stage for delinquent behavior.
206
However, some
research indicates that the link between single-parenthood and delin-
quency does not hold for African American children.
207
The research on cohabiting families and youth crime and delinquency
is still in its infancy. Nevertheless, studies indicate that adolescents in
cohabiting families are more likely to engage in delinquent behavior, to
cheat, and to be suspended from school.
208
Moreover, white and Latino
adolescents in cohabiting households were more likely to have behav-
ioral problems than adolescents living in intact, married households and
adolescents living in single-mother households.
209
One reason that teens
in cohabiting households appear to do worse than teens living in single-
parent homes is that cohabiting households are usually led by their
mother and an unrelated male. Such boyfriends are more likely to be
26.
SER 37
Page 38
abusive than a married father, and they are also more likely to compete
with the child for the attention of the mother.
210
Family transitions are also related to increases in delinquency among
adolescents. Specifically, moving from a two-biological parent family to
a single-mother family and moving from a single-mother family to either
a cohabiting or married stepfamily is associated with an increase in
delinquency for adolescents. However, moving to a single-mother family
from a married or cohabiting stepfamily does not appear to matter, nor
does moving from a cohabiting stepfamily to a married stepfamily. In
other words, children who transition out of a stable, intact, married
family are more likely to engage in delinquent behavior.
211
Marriage appears to reduce the risk that adults will be
either perpetrators or victims of crime.
Overall, single and divorced women are four to five times more likely
to be victims of violent crime in any given year than are married
women. Single and divorced women are almost ten times more likely
than are wives to be raped, and about three times more likely to be the
victims of aggravated assault. For instance, the U.S. Department of
Justice estimates that the violent victimization rate was 17 per 1000 mar-
ried women compared to more than 60 per 1000 single and divorced
women in 19921993. Similarly, compared to husbands, unmarried men
are about four times as likely to become victims of violent crime.
212
Marriage also plays a crucial role in reducing male criminality.
213
A study
of five hundred chronic juvenile offenders found that those who mar-
ried and enjoyed high-quality marriages reduced their offense rate by
two-thirds, compared to criminals who did not marry or who did not
establish good marriages.
214
Research by sociologist Robert Sampson
indicates that murder and robbery rates in urban America are strongly
tied to the health of marriage in urban communities. Specifically, he
found that high rates of family disruption and low rates of marriage
were associated with high rates of murder and robbery among both
African American and white adults and juveniles.
215
In his words,
Family structure is one of the strongest, if not the strongest, predictor
of variations in urban violence across cities in the United States.
216
Another recent study comes to a similar conclusion, claiming that the
difference in family structure between whites and blacks is one of the
most consistent explanations for the black-white homicide gap.
217
Marriage also reduces criminality in the Netherlands, indicating the
27.
SER 38
Page 39
effect is not unique to the American context.
218
Other research indicates
that declines in marriage rates among working-class and poor men in
the 1970s drove crime rates markedly higher in that decade. The rea-
son? Married men spend more time with their wives, who discourage
criminal behavior, and less time with peers, who often do not.
219
Some
of the most rigorous research on the causal relationship between mar-
riage and crime finds that marriage reduces the odds of a man com-
mitting a crime by about 35 percent.
220
Married women appear to have a lower risk of experi-
encing domestic violence than do cohabiting or dating
women.
Domestic violence remains a serious problem both inside and outside
of marriage.
While young women must recognize that marriage is not a good strategy
for reforming violent men, a large body of research shows that being
unmarried, and especially living with a man outside of marriage, is asso-
ciated with an increased risk of domestic abuse.
221
One analysis of the
National Survey of Families and Households found that cohabitors were
over three times more likely than spouses to say that arguments became
physical over the last year (13 percent of cohabitors versus 4 percent of
spouses). Even after controlling for race, age, and education, people
who live together are still more likely than married people to report vio-
lent arguments.
222
Mothers of infants likewise report higher incidence of
partner violence when they are either cohabiting or in a non-cohabiting
romantic relationship.
223
During young adulthood, however, when mar-
riage is less normative and dating more so, there does not appear to be
differences in relationship violence between marrieds and daters. Even
so, the difference between marrieds and cohabitors persists for young
adult women.
224
Another study of domestic violence among African
Americans found that African American women were more likely to be
victimized if they were living in neighborhoods with higher proportions
of cohabiting couples.
225
Overall, as one scholar sums up the relevant
research, Regardless of methodology, the studies yielded similar results:
Cohabitors engage in more violence than do spouses.
226
Selection effects play a powerful role. Women are less likely to marry,
and more likely to divorce, violent men. So, one reason that women in
cohabiting relationships are more likely to have a violent partner is that
cohabiting women in nonviolent relationships are more likely to move
28.
SER 39
Page 40
into marriage, whereas cohabiting women in violent relationships are
less likely to move on to marriage; this means that the most violent rela-
tionships are more likely to remain cohabiting ones.
227
However, scholars
suggest that the greater integration of married men into the community,
and the greater investment of spouses in each other, also play a role.
228
Married men, for example, are more responsive to policies such as
mandatory arrest policies, designed to signal strong disapproval of
domestic violence.
229
A child who is not living with his or her own two married
parents is at greater risk of child abuse.
Children living with single mothers, mothers boyfriends, or stepfathers
are more likely to become victims of child abuse.
230
Children living in
single-mother homes have increased rates of death from intentional
injuries.
231
Another national study found that 7 percent of children who
had lived with one parent had experienced sexual abuse, compared to
4 percent of children who lived with both biological parents, largely
because they had more contact with unrelated adult males.
232
Other
research found that, although boyfriends contribute less than 2 percent
of nonparental childcare, they commit half of all reported child abuse
by nonparents. The researcher concludes that a young child left alone
with a mothers boyfriend experiences elevated risk of physical
abuse.
233
A recent federal report on child maltreatment found that
[c]hildren living with two married biological parents had the lowest rate
of overall Harm Standard maltreatment, at 6.8 per 1,000 children,
whereas [c]hildren living with one parent who had an unmarried partner
in the household had the highest incidence of Harm Standard maltreat-
ment (57.2 per 1,000).
234
Another study focusing on fatal child abuse in
Missouri found that preschool children were 47.6 times more likely to
die in a cohabiting household, compared to preschool children living in
an intact, married household.
235
Stepfathers also present risks to children. As psychologists Martin Daly
and Margo Wilson reported, Living with a stepparent has turned out
to be the most powerful predictor of severe child abuse yet.
236
Studies
have found that young children in stepfamilies are more than fifty
times more likely to be murdered by a stepparent (usually a stepfa-
ther) than by a biological parent.
237
One study found that a preschool-
er living with a stepfather was forty times more likely to be sexually
abused than one living with both of his or her biological parents.
238
29.
SER 40
Page 41
There is a growing marriage gap between college-edu-
cated Americans and less-educated Americans.
As late as the 1970s, the vast majority of adult Americans were living in
an intact marriage, and almost nine in ten children were born into mar-
ried families. No longer. Now, less than half of adults are married, and
almost half white high-school educated Americans.
239
Clearly, the
nations retreat from marriage has dramatically reshaped the nature of
adult life, and the context of family life for children.
But this retreat from marriage has hit poor, working-class, and
minority communities with particular force. By contrast, marriage
trends among more educated and affluent Americans have largedly
stabilized or taken a turn for the better. For instance, nonmarital child-
bearing rose more than six-fold from 5 percent in 1982 to 34 percent
in 20062008 among white high-school educated Americans. Over this
same period, it did not rise at all for white college-educated
Americans, among whom only 2 percent of children were born ou
tside of marriage in the 1980s and the 2000s. Similarly, over this same
period, family instability rose among Americans who did not have col-
lege degrees, but fell among college-educated Americans. Since 1982,
the percentage of fourteen-year-olds living with both of their parents
has declined for children living with parents who do not have college
degrees, while it has increased for children whose parents have college
degrees.
240
Thus, in the United States today, there is a growing marriage gap such
that the educated and the affluent are enjoying more stable and high-
quality marriages, and the less educated and less affluent are experi-
encing lower-quality and less stable marriages. Indeed, poor and working-
class Americans are increasingly foregoing marriage entirely, opting
instead for cohabiting unions that often do not serve them and their
children well over the long term.
The growing marriage gap is troubling for at least two reasons. It
leaves working-class and poor adults more distanced from an institu-
tion that has historically lent purpose, meaning, responsibility, mutual
aid, and a sense of solidarity to the lives of countless men and
women. And it leaves children in poor and working-class communities
doubly disadvantaged, insofar as children in these communities have
access to fewer socioeconomic resources and fewer intact, married
families.
30.
SER 41
Page 42
Conclusion
M
ARRIAGE IS MORE THAN A PRIVATE EMOTIONAL RELATIONSHIP. It is
also a social good. This is not to claim that every person can
or should marry. Or that every child raised outside of marriage
is damaged as a result. Marriage is not a panacea that will solve all of
our social problems.
But marriage matters. Children in average intact, married families are
more likely to thrive than children in average single- and stepparent
families, and families headed by cohabiting couples. Communities
where good-enough marriages are common have better outcomes for
children, women, and men than do communities marked by high rates
of divorce, unmarried childbearing, cohabition, and high-conflict or vio-
lent marriages. Moreover, as we have seen, the benefits of a strong mar-
riage culture extend across lines of race, ethnicity, and class.
Indeed, if we adapt a public health perspective in thinking about the
effects of marriage on the commonweal, we can see that the effects of
marriage areat the societal levelquite large. Sociologist Paul Amato
recently estimated the effects of returning marriage rates for households
with children to the level they were in 1980. This is what he found:
Increasing marital stability to the same level as in 1980 is associated
with a decline of nearly one-half million children suspended from
school, about two hundred thousand fewer children engaging in
delinquency or violence, a quarter of a million fewer children receiv-
ing therapy, about a quarter of a million fewer smokers, about
80,000 fewer children thinking about suicide, and about 28,000
fewer children attempting suicide.
241
So the institutional strength of marriage in our society has clear conse-
quences for children, adults, and the communities in which they live.
If policy makers are concerned about issues as varied as poverty, crime,
child well-being, rising economic inequality, and the fiscal limits of the
contemporary welfare state, they should recognize that the nations
retreat from marriage is closely connected to all of these issues. To
strengthen marriage, more funding is needed for research that points
the way toward new public policies, community initiatives, and public
campaigns to help strengthen marriage, particularly in minority and
low-income communities most affected by the retreat from marriage.
We also need ongoing, basic scientific research on marriage, cohabitation,
SER 42
Page 43
and family instability that contributes to the development of strategies
and programs that help strengthen marriage and slow the relational
merry-go-round that all too many adults and children now find them-
selves riding.
242
There is promising evidence of successful strategies,
243
but such strategies should continue to be informed by ongoing
research.
We need to answer questions like the following: What are the long-term
consequences for children of growing up in increasingly unstable and
complex families? How can we prevent nonmarital childbearing and
bridge the marriage gap? How can families, marriage educators, thera-
pists, and public policy help working-class and poor parents recognize
that cohabitation does not compare to marriage when it comes to start-
ing a family? How can communities be mobilized to promote a marriage-
friendly culture? And how do we bring together those who are doing
the grassroots work of strengthening marriage with researchers and
public officials in order to create synergies of knowledge, practice, and
public policy?
If marriage is not merely a private preference, but also a social and
public good, concerned citizens, as well as scholars, need and deserve
answers to these and similar questions.
SER 43
Page 44
Appendix: Figures
FIGURE 2. PERCENT OF CHILDREN EXPERIENCING PARENTAL DIVORCE/SEPARATION AND
PARENTAL COHABITATION, BY AGE 12; PERIOD LIFE TABLE ESTIMATES, 2002-07
50
40
30
20
10
0
P
E
R
C
E
N
T
PARENTAL DIVORCE PARENTAL COHABITATION
Source: Kennedy and Bumpass, 2011. Data from National Survey of Family
Growth. Note: The divorce/separation rate only applies to children born to
married parents.
24%
42%
28
27
26
25
24
23
22
21
20
FIGURE 1. PERCENT OF FIRST CHILDREN EXPERIENCING PARENTAL DIVORCE BY AGE 10,
BY PARENTS YEAR OF MARRIAGE (1960-1997)
Source: SIPP Data, 2001, 2004, and 2008. Women with premarital births excluded.
1960
TO
1964
1965
TO
1969
1970
TO
1974
1975
TO
1979
1980
TO
1984
1985
TO
1989
1990
TO
1994
1995
TO
1997
P
E
R
C
E
N
T
SER 44
Page 45
20
15
10
5
0
FIGURE 3. INCIDENCE PER 1,000 CHILDREN OF HARM STANDARD ABUSE BY
FAMILY STRUCTURE AND LIVING ARRANGEMENT, 2005-2006
Source: Figure 5-2 in Fourth National Incidence Study of Child Abuse and Neglect
(NIS-4): Report to Congress.
1.9
9.8
8.2
19.5
5.9
6.8
0.5
4.3
2.4
9.9
5.3
0.8
5.0
2.5
2.9
4.0
PHYSICAL ABUSE SEXUAL ABUSE EMOTIONAL ABUSE
2.4
8.2
Married biological parents
Other married parents
Cohabiting biological parents
Parent with cohabiting partner
Single parent, no partner
Neither parent
FIGURE 4. PERCENT OF 16-YEAR-OLDS LIVING WITH MOTHER AND FATHER,
1978-1984 AND 1998-2004
80
70
60
50
40
30
20
10
0
P
E
R
C
E
N
T
1978-1984 1998-2004
Source: General Social Survey, 1980-2010.
66%
55%
SER 45
Page 46
FIGURE 5. PERCENT OF CHILDREN EXPERIENCING PARENTAL SEPARATION BY AGE 12
BY MOTHERS RELATIONSHIP STATUS AT BIRTH; PERIOD LIFE TABLE ESTIMATES, 2002-07
MARRIED MOTHER COHABITING MOTHER
Source: Kennedy and Bumpass, 2011. Data from National Survey of Family
Growth.
80
70
60
50
40
30
20
10
0
P
E
R
C
E
N
T
24%
65%
FIGURE 6. PERCENT OF 14-YEAR-OLD GIRLS LIVING WITH MOTHER AND FATHER,
BY MOTHERS EDUCATION AND YEAR
100
80
60
40
20
0
P
E
R
C
E
N
T
Source: National Survey of Family Growth, 1982 and 2006-08.
65%
52%
74%
58%
80%
81%
MOTHER HAD NO
HIGH SCHOOL
DEGREE
MOTHER HAD HIGH
SCHOOL DEGREE,
NO FOUR-YEAR
COLLEGE DEGREE
MOTHER HAD
FOUR-YEAR COLLEGE
DEGREE
1974-1981
2000-2007
SER 46
Page 47
Endnotes
Endnotes are located online at:
http://www.americanvalues.org/wmm/endnotes.php
SER 47
About the Institute for American Values
The Institute for American Values, founded in 1987, is a private, nonpartisan
organization devoted to research, publication, and public education on issues
of family well-being and civil society. By providing forums for scholarly
inquiry and debate, the Institute seeks to bring fresh knowledge to bear on
the challenges facing families and civil society. Through its publications and
other educational activities, the Institute seeks to bridge the gap between
scholarship and policy making, bringing new information to the attention of
policy makers in the government, opinion makers in the media, and decision
makers in the private sector.
About the National Marriage Project
The National Marriage Project, founded in 1997 at Rutgers University, is a
nonpartisan, nonsectarian, and interdisciplinary initiative now located at
the University of Virginia. The Projects mission is to provide research and
analysis on the health of marriage in America, to analyze the social and cul-
tural forces shaping contemporary marriage, and to identify strategies to
increase marital quality and stability.
1841 Broadway
Suite 211
New York, NY 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
info@americanvalues.org
www.americanvalues.org
National Marriage Project
The University of Virginia
P.O. Box 400766
The Dynamics Building
Charlottesville, VA 22904-4766
Tel: (434) 321-8601
Fax: (434) 924-7028
marriage@virginia.edu
www.virginia.edu/marriageproject/
SER 48
Te Witherspoon Institute
Marriage and the Public Good:
Ten Principles
Princeton, New Jersey
August 2008
SER 49
Te Witherspoon Institute is grateful to the John Templeton Foundation
and the Social Trends Institute for the nancial assistance that has made this research possible.
Te opinions expressed in this report are those of the signatories and do not necessarily reect the
views of the John Templeton Foundation or the Social Trends Institute.

Marriage and the Public Good: Ten Principles
www.princetonprinciples.org
2008 by Te Witherspoon Institute
Tis book is the sole property of Te Witherspoon Institute. It may not be altered or edited in any way.
It may be reproduced for circulation only in its entirety, without charge. All reproductions of this book must
contain the copyright notice (i.e., Copyright 2008 by Te Witherspoon Institute) and this Copyright/Reproduction
Limitations notice. Please notify the Witherspoon Institute of any intentions to circulate or reproduce
this book. Tis book may not be used without the permission of Te Witherspoon Institute for
resale or the enhancement of any other product sold.
Te Witherspoon Institute
16 Stockton Street
Princeton, New Jersey 08540
USA
www.winst.org
SER 50
Contents
Executive Summary 1
I. Te Challenge to Marriage and Family Today 3
II. Marriage and the Public Good: Ten Principles 5
III. Evidence from the Social and Biological Sciences 9
IV. Analysis from Political and Moral Philosophy: Te Intrinsic Goods
of Marriage 20
V. American Exceptionalism and the Way Forward 23
Notes 26
Signatories 30
About the Witherspoon Institute 34
Marriage and the Public Good: Ten Principles is the result of scholarly discussions that began in December 2004 at a
meeting in Princeton, New Jersey, sponsored by the Witherspoon Institute. Tis conference brought together scholars
from economics, history, law, philosophy, psychiatry, and sociology to share with each other the ndings of their re-
search on why marriage, understood as the permanent union of husband and wife, is in the public interest. A consensus
developed among the participants in favor of sharing more widely the fruit of their collaboration.
Te Witherspoon Institute is an independent research center located in Princeton, New Jersey. It is not connected
to Princeton University, the Princeton Teological Seminary, Te Center for Teological Inquiry, or the Institute for
Advanced Study.
For more information, please contact the drafting committee of the Principles, at principles@winst.org.
SER 51
SER 52
1
Executive Summary
In recent years, marriage has weakened, with serious negative consequences for society as a whole. Four
developments are especially troubling: divorce, illegitimacy, cohabitation, and same-sex marriage.
Te purpose of this document is to make a substantial new contribution to the public debate over marriage.
Too often the rational case for marriage is not made at all or not made very well. As scholars, we are per-
suaded that the case for marriage can be made and won at the level of reason.
Marriage protects children, men and women, and the common good. Te health of marriage is particularly
important in a free society, which depends upon citizens to govern their private lives and rear their children
responsibly, so as to limit the scope, size, and power of the state. Te nations retreat from marriage has been
particularly consequential for our societys most vulnerable communities: minorities and the poor pay a
disproportionately heavy price when marriage declines in their communities. Marriage also oers men and
women as spouses a good they can have in no other way: a mutual and complete giving of the self. Tus,
marriage understood as the enduring union of husband and wife is both a good in itself and also advances the public
interest.
We arm the following ten principles that summarize the value of marriagea choice that most people
want to make, and that society should endorse and support.
Ten Principles on Marriage and the Public Good
1. Marriage is a personal union, intended for the whole of life, of husband and wife.
2. Marriage is a profound human good, elevating and perfecting our social and sexual nature.
3. Ordinarily, both men and women who marry are better o as a result.
4. Marriage protects and promotes the well-being of children.
5. Marriage sustains civil society and promotes the common good.
6. Marriage is a wealth-creating institution, increasing human and social capital.
7. When marriage weakens, the equality gap widens, as children suer from the disadvantages of
growing up in homes without committed mothers and fathers.
8. A functioning marriage culture serves to protect political liberty and foster limited government.
9. Te laws that govern marriage matter signicantly.
10. Civil marriage and religious marriage cannot be rigidly or completely divorced from one another.
SER 53
2
Tis understanding of marriage is not narrowly religious, but the cross-cultural fruit of broad human expe-
rience and reection, and supported by considerable social science evidence. But a marriage culture cannot
ourish in a society whose primary institutionsuniversities, courts, legislatures, religionsnot only fail to
defend marriage but actually undermine it both conceptually and in practice.
Creating a marriage culture is not the job for government. Families, religious communities, and civic institu-
tions point the way. But law and public policy will either reinforce and support these goals, or undermine them. We
call upon our nations leaders, and our fellow citizens, to support public policies that strengthen marriage as
a social institution, including:
1. Protect the public understanding of marriage as the union of one man with one woman as husband
and wife.
2. Investigate divorce law reforms.
3. End marriage penalties for low-income Americans.
4. Protect and expand pro-child and pro-family provisions in our tax code.
5. Protect the interests of children from the fertility industry.
Families, religious communities, community organizations, and public policymakers must work together
toward a great goal: strengthening marriage so that each year more children are raised by their own mother
and father in loving, lasting marital unions. Te future of the American experiment depends upon it. And
our children deserve nothing less.
SER 54
3
I. TALLENI. THE CHALLENGE TO MARRIAGE AND FAMILY TODAY

Marriageconsidered as a legally sanctioned union of one man and one womanplays a vital role in pre-
serving the common good and promoting the welfare of children. In virtually every known human society,
the institution of marriage provides order and meaning to adult sexual relationships and, more fundamen-
tally, furnishes the ideal context for the bearing and rearing of the young. Te health of marriage is particu-
larly important in a free society such as our own, which depends upon citizens to govern their private lives
and rear their children responsibly, so as to limit the scope, size, and power of the state. Marriage is also an
important source of social, human, and nancial capital for children, especially for children growing up in
poor, disadvantaged communities who do not have ready access to other sources of such capital. Tus, from
the point of view of spouses, children, society, and the polity, marriage advances the public interest.
But in the last forty years, marriage and family have come under increasing pressure from the modern state,
the modern economy, and modern culture. Family law in all fty states and most countries in the Western
world has facilitated unilateral divorce, so that marriages can be easily and eectively terminated at the
will of either party. Changing sexual mores have made illegitimacy and cohabitation a central feature of
our social landscape. Te products of Madison Avenue and Hollywood often appear indierent to, if not
hostile toward, the norms that sustain decent family life. New medical technology has made it easier for
single mothers and same-sex couples to have children not only outside of marriage, but even without sexual
intercourse. Taken together, marriage is losing its preeminent status as the social institution that directs and
organizes reproduction, childrearing, and adult life.
1

Te nations retreat from marriage has been particularly consequential for our societys most vulnerable
communities. Out-of-wedlock birth, divorce, and single motherhood are much more common among low-
er-income African Americans and, to a lesser extent, Hispanic Americans, in large part because they often
do not have as many material, social, and personal resources to resist the deinstitutionalization of marriage.
Te latest social scientic research on marriage indicates that minorities and the poor pay a disproportion-
ately heavy price when marriage declines in their communities, meaning that the breakdown of the family
only compounds the suering of those citizens who already suer the most.
2

Te response to this crisis by activist defenders of marriage, while often successful at the ballot box in the
United States, has had limited inuence on the culture, and in many cases those who deliberately seek to
redene the meaning of marriage or downplay its special signicance have argued more eectively. Too
often, the rational case for marriage is not made at all or not made very well. Appeals to tradition are rarely
decisive in themselves in the American context today, especially among those who believe that individuals
should choose their own values rather than heed the wisdom and ways of past generations. Religious ap-
peals, though important in the lives of many individuals and families, have limited reach in a society that
limits the role of religious institutions in public life. Appeals to peoples feelings or intuitions, however
strong, are easily dismissed as appeals to prejudice, unjustly valuing some lifestyles over others. And in a
SER 55
4
society whose moral self-understanding has been formed by the struggle to overcome racial prejudice and
promote equal rights, such appeals not only fail to persuade but seem to indicate bad faith.
In this context, we think there is a pressing need for scholarly discussion of the ideal of marriage, defended
with reasons that are comprehensible in public debate and that draw upon the full range of social scientic
evidence and humanistic reection. At issue is not only the value of marriage itself, but the reasons why the
public has a deep interest in a socially supported normative understanding of marriage. Marriage is under
attack conceptually, in university communities and other intellectual centers of inuence. To defend marriage
will require confronting these attacks, assessing their arguments, and correcting them where necessary. We
are persuaded that the case for marriage can be made and won at the level of reason. Te principles outlined
below, and the evidence and arguments oered on their behalf are meant to make that case.
We are aware, of course, that the debate over the normative status of marriage in our society necessarily
acquires an emotional edge. No one is untouched by the issue in his or her personal life, and we can readily
agree with the critics of marriage that questions of sexual identity, gender equity, and personal happiness
are at stake. In arguing for the normative status of marriage, we do not suppose that all people ought to be
married or that marriage and family are the only source of good in peoples lives. Nor do we wish to deny
or downgrade societys obligation to care about the welfare of all children, regardless of their parents family
form.
Still, we think that, particularly as university teachers and on behalf of our students, we need to make this
statement, since marriage is above all a choice for the young: they need arguments to counterbalance the
dominant arguments now attacking marriage as unjust and undesirable, and they need to know what mar-
riage is in order to sustain their own marriages and raise their own children. Just as it did in earlier cultures,
the marital family provides the basis for a settled pattern of reproduction and education that a large, modern,
democratic society still surely needs. Our principles mean to summarize the value of married life and the
life of families that is built upon marriagea choice that most people want to make, and that society should
endorse and support.
SER 56
5
II. MARRIAGE AND THE PUBLIC GOOD: TEN PRINCIPLES
1. Marriage is a personal union, intended for the whole of life, of husband and wife.
Marriage diers from other valued personal relationships in conveying a full union of husband and wife
including a sexual, emotional, nancial, legal, spiritual, and parental union. Marriage is not the ratication of
an existing relation; it is the beginning of a new relationship between a man and a woman, who pledge their
sexual delity to one another, promise loving mutual care and support, and form a family that welcomes and
nurtures the children that may spring from their union. Tis understanding of marriage has predominated
in Europe and America for most of the past two thousand years. It springs from the biological, psychologi-
cal, and social complementarity of the male and female sexes: Women typically bring to marriage important
gifts and perspectives that men typically do not bring, just as men bring their own special gifts and perspec-
tives that women typically cannot provide in the same way. Tis covenant of mutual dependence and obliga-
tion, solemnized by a legal oath, is strengthened by the pledge of permanence that husband and wife oer to
one anotheralways to remain, never to ee, even and especially in the most dicult times.
2. Marriage is a profound human good, elevating and perfecting our social and sexual nature.
Human beings are social animals, and the social institution of marriage is a profound human good. It is a
matrix of human relationships rooted in the spouses sexual complementarity and procreative possibilities,
and in childrens need for sustained parental nurturance and support. It creates clear ties of begetting and
belonging, ties of identity, kinship, and mutual interdependence and responsibility. Tese bonds of delity
serve a crucial public purpose, and so it is necessary and proper for the state to recognize and encourage
marriage in both law and public policy. Indeed, it is not surprising that marriage is publicly sanctioned and
promoted in virtually every known society and often solemnized by religious and cultural rituals. Modern
biological and social science only conrm the benets of marriage as a human good consistent with our
given nature as sexual and social beings.
3. Ordinarily, both men and women who marry are better o as a result.
Married men gain moral and personal discipline, a stable domestic life, and the opportunity to participate
in the upbringing of their children. Married women gain stability and protection, acknowledgment of the
paternity of their children, and shared responsibility and emotional support in the raising of their young.
Together, both spouses gain from a normative commitment to the institution of marriage itselfincluding
the benets that come from faithfully fullling ones chosen duties as mother or father, husband or wife.
Couples who share a moral commitment to marital permanency and delity tend to have better marriages.
Te marital ethic enjoining permanence, mutual delity, and care, as well as forbidding violence or sexual
abuse, arises out of the core imperative of our marriage tradition: that men and women who marry pledge
to love one another, in sickness and in health and for better or for worse, ordinarily until death do
us part.
SER 57
6
4. Marriage protects and promotes the well-being of children.
Te family environment provided by marriage allows children to grow, mature, and ourish. It is a seedbed
of sociability and virtue for the young, who learn from both their parents and their siblings. Specically, the
married family satises childrens need to know their biological origins, connects them to both a mother
and a father, establishes a framework of love for nurturing them, oversees their education and personal
development, and anchors their identity as they learn to move about the larger world. Tese are not merely
desirable goods, but what we owe to children as vulnerable beings lled with potential. Whenever humanly pos-
sible, children have a natural human right to know their mother and father, and mothers and fathers have a
solemn obligation to love their children unconditionally.
5. Marriage sustains civil society and promotes the common good.
Civil society also benets from a stable marital order. Families are themselves small societies, and the web
of trust they establish across generations and between the spouses original families are a key constituent of
society as a whole. Te network of relatives and in-laws that marriage creates and sustains is a key ingredi-
ent of the social capital that facilitates many kinds of benecial civic associations and private groups. Te
virtues acquired within the familygenerosity, self-sacrice, trust, self-disciplineare crucial in every do-
main of social life. Children who grow up in broken families often fail to acquire these elemental habits of
character. When marital breakdown or the failure to form marriages becomes widespread, society is harmed
by a host of social pathologies, including increased poverty, mental illness, crime, illegal drug use, clinical
depression, and suicide.
6. Marriage is a wealth-creating institution, increasing human and social capital.
Te modern economy and modern democratic state depend upon families to produce the next genera-
tion of productive workers and taxpayers. Tis ongoing renewal of human capital is a crucial ingredient in
the national economy, one that is now in grave peril in those societies with rapidly aging populations and
below-replacement fertility rates. It is within families that young people develop stable patterns of work and
self-reliance at the direction of their parents, and this training in turn provides the basis for developing use-
ful skills and gaining a profession. More deeply, marriage realigns personal interests beyond the good of the
present self, and thus reduces the tendency of individuals and groups to make rash or imprudent decisions
that squander the inheritance of future generations. Families also provide networks of trust and capital that
serve as the foundation for countless entrepreneurial small-business enterprises (as well as some large cor-
porations), which are crucial to the vitality of the nations economy. In addition, devoted spouses and grown
children assist in caring for the sick and elderly, and maintain the solvency of pension and social-insurance
programs by providing unremunerated care for their loved ones, paying taxes, and producing the children
who will form future generations of tax-paying workers. Without ourishing families, in other words, the
long-term health of the modern economy would be imperiled.
SER 58
7
7. When marriage weakens, the equality gap widens, as children suer from the disadvantages of grow-
ing up in homes without committed mothers and fathers.
Children whose parents fail to get and stay married are at an increased risk of poverty, dependency, sub-
stance abuse, educational failure, juvenile delinquency, early unwed pregnancy, and a host of other destruc-
tive behaviors. When whole families and neighborhoods become dominated by fatherless homes, these risks
increase even further. Te breakdown of marriage has hit the African-American community especially hard,
and thus threatens the cherished American ideal of equality of opportunity by depriving adults and especial-
ly children of the social capital they need in order to ourish. Precisely because we seek to eliminate social
disadvantages based upon race and class, we view the cultural, economic, and other barriers to strengthening
marriage in poor neighborhoodsespecially among those racial minorities with disproportionately high
rates of family breakdownas a serious problem to be solved with persistence, generosity, and ingenuity.
8. A functioning marriage culture serves to protect political liberty and foster limited government.
Strong, intact families stabilize the state and decrease the need for costly and intrusive bureaucratic social
agencies. Families provide for their vulnerable members, produce new citizens with virtues such as loyalty
and generosity, and engender concern for the common good. When families break down, crime and social
disorder soar; the state must expand to reassert social control with intrusive policing, a sprawling prison sys-
tem, coercive child-support enforcement, and court-directed family life.
3
Without stable families, personal
liberty is thus imperiled as the state tries to fulll through coercion those functions that families, at their
best, fulll through covenantal devotion.
9. Te laws that govern marriage matter signicantly.
Law and culture exhibit a dynamic relationship: Changes in one ultimately yield changes in the other,
and together law and culture structure the choices that individuals see as available, acceptable, and choice-
worthy. Given the clear benets of marriage, we believe that the state should not remain politically neutral,
either in procedure or outcome, between marriage and various alternative family structures. Some have
sought to redene civil marriage as a private contract between two individuals regardless of sex, others as a
binding union of any number of individuals, and still others as any kind of contractual arrangement for any
length of time that is agreeable to any number of consenting adult parties. But in doing so a state would nec-
essarily undermine the social norm which encourages marriage as historically understoodi.e., the sexually
faithful union, intended for life, between one man and one woman, open to the begetting and rearing of
children. Te public goods uniquely provided by marriage are recognizable by reasonable persons, regardless
of religious or secular worldview, and thus provide compelling reasons for reinforcing the existing marriage
norm in law and public policy.
SER 59
8
10. Civil marriage and religious marriage cannot be rigidly or completely divorced from
one another.
Americans have always recognized the right of any person, religious or non-religious, to marry. While the
ceremonial form of religious and secular marriages often diers, the meaning of such marriages within
the social order has always been similar, which is why the state honors those marriages duly performed by
religious authorities. Moreover, current social science evidence on religion and marital success arms the
wisdom of the American tradition, which has always recognized and acknowledged the positive role that
religion plays in creating and sustaining marriage as a social institution.
4
Te majority of Americans marry
in religious institutions, and for many of these people a religious dimension suuses the whole of family
life and solemnizes the marriage vow. It is thus important to recognize the crucial role played by religious
institutions in lending critical support for a sustainable marriage culture, on which the whole society de-
pends. And it is important to preserve some shared idea of what marriage is that transcends the dierences
between religious and secular marriages and between marriages within our nations many diverse religious
traditions.
SER 60
9
III. EVIDENCE FROM THE SOCIAL AND BIOLOGICAL SCIENCES
In the last forty years, society has conducted a vast family experiment, and the outcomes are increasingly
coming to light via scientic investigations. While no single study is denitive, and there is room at the
edges for debate about particular consequences of marriage, the clear preponderance of the evidence shows
that intact, married families are superiorfor adults and especially for childrento alternative family ar-
rangements. A great deal of research now exists from the anthropological, sociological, psychological, and
economic sciences, demonstrating the empirical benets of marriage.
In virtually every known human society, the institution of marriage has served and continues to serve three
important public purposes. First, marriage is the institution through which societies seek to organize the
bearing and rearing of children; it is particularly important in ensuring that children have the love and sup-
port of their father. Second, marriage provides direction, order, and stability to adult sexual unions and to
their economic, social, and biological consequences. Tird, marriage civilizes men, furnishing them with a
sense of purpose, norms, and social status that orient their lives away from vice and toward virtue.
5
Marriage
achieves its myriad purposes through both social and biological means that are not easily replicated by the
various alternatives to marriage. When marriage is strong, children and adults both tend to ourish; when
marriage breaks down, every element of society suers.
Te Well-being of Children
Te evidence linking the health of marriage to the welfare of children is clear. During the last two decades,
a large body of social scientic research has emerged indicating that children do best when reared by their
mothers and fathers in a married, intact family. A recent report by Child Trends, a nonpartisan research
organization, summarized the new scholarly consensus on marriage this way: [R]esearch clearly demon-
strates 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-conict marriage.
6
Other recent reviews of the literature
on marriage and the well-being of children, conducted by the Brookings Institution, the Woodrow Wilson
School of Public and International Aairs at Princeton University, the Center for Law and Social Policy,
and the Institute for American Values, have all come to similar conclusions.
7

Marriage matters for children in myriad ways. We focus here on the educational, psychological, sexual, and
behavioral consequences for children of family structure, beginning with education. Children reared in in-
tact, married homes are signicantly more likely to be involved in literacy activities (such as being read to by
adults or learning to recognize letters) as preschool children, and to score higher in reading comprehension
as fourth graders.
8
School-aged children are approximately 30 percent less likely to cut class, be tardy, or
miss school altogether.
9
Te cumulative eect of family structure on childrens educational performance is
most evident in high school graduation rates. Children reared in intact, married households are about twice
as likely to graduate from high school, compared to children reared in single-parent or step-families. One
study found that 37 percent of children born outside of marriage and 31 percent of children with divorced
SER 61
10
parents dropped out of high school, compared to 13 percent of children from intact families headed by a
married mother and father.
10
Marriage also plays a central role in fostering the emotional health of children. Children from stable, mar-
ried families are signicantly less likely to suer from depression, anxiety, alcohol and drug abuse, and
thoughts of suicide compared to children from divorced homes.
11
One recent study of the entire population
of Swedish children found that Swedish boys and girls in two-parent homes were about 50 percent less
likely to suer from suicide attempts, alcohol and drug abuse, and serious psychiatric illnesses compared to
children reared in single-parent homes.
12
A survey of the American literature on child well-being found that
family structure was more consequential than poverty in predicting childrens psychological and behavioral
outcomes.
13
In general, children who are reared by their own married mothers and fathers are much more
likely to confront the world with a sense of hope, self-condence, and self-control than children raised
without an intact, married family.
Marriage is also important in connecting children to their biological fathers and grounding their familial
identities. Research by Yale psychiatrist Kyle Pruett suggests that children conceived by articial reproduc-
tive technologies (ART) and reared without fathers have an unmet hunger for an abiding paternal pres-
ence; his research parallels ndings from the literature on divorce and single-parenthood.
14
Pruetts work
also suggests that children conceived by ART without known fathers have deep and disturbing questions
about their biological and familial origins. Tese children do not know their fathers or their paternal kin,
and they dislike living in a kind of biological and paternal limbo.
15
By contrast, children who are reared by
their married biological parents are more likely to have a secure sense of their own biological origins and
familial identity.
Family structure, particularly the presence of a biological father, also plays a key role in inuencing the
sexual development, activity, and welfare of young girls. Teenage girls who grow up with a single mother or a
stepfather are signicantly more likely to experience early menstruation and sexual development, compared
to girls reared in homes headed by a married mother and father.
16
Partly as a consequence, girls reared in
single-parent or step-families are much more likely to experience a teenage pregnancy and to have a child
outside of wedlock than girls who are reared in an intact, married family.
17
One study found that only 5
percent of girls who grew up in an intact family got pregnant as teenagers, compared to 10 percent of girls
whose fathers left after they turned six, and 35 percent of girls whose fathers left when they were preschool-
ers.
18
Research also suggests that girls are signicantly more likely to be sexually abused if they are living
outside of an intact, married homein large part because girls have more contact with unrelated males if
their mothers are unmarried, cohabiting, or residing in a stepfamily.
19

Boys also benet in unique ways from being reared within stable, married families. Research consistently
nds that boys raised by their own fathers and mothers in an intact, married family are less likely to get in
trouble than boys raised in other family situations. Boys raised outside of an intact family are more likely to
have problems with aggression, attention decit disorder, delinquency, and school suspensions, compared
SER 62
11
to boys raised in intact married families.
20
Some studies suggest that the negative behavioral consequences
of marital breakdown are even more signicant for boys than for girls. One study found that boys reared in
single-parent and step-families were more than twice as likely to end up in prison, compared to boys reared
in an intact family.
21
Clearly, stable marriage and paternal role models are crucial for keeping boys from self-
destructive and socially destructive behavior.
Virtually all of the studies cited here control for socioeconomic, demographic, and even genetic factors that
might otherwise distort the relationship between family structure and child well-being. So, for instance, the
link between family breakdown and crime is not an artifact of poverty among single parents.
22
Moreover, the
newest work on divorce follows adult twins and their children to separate out the unique eects of divorce
itself from the potential role that genetic (and socioeconomic) factors might play in inuencing childrens
outcomes. Tis research indicates that divorce has negative consequences for childrens psychological and
social welfare even after controlling for the genetic vulnerabilities of the parents who divorced.
23

Why, then, does the evidence link marriage to an impressive array of positive outcomes for children? Both
social and biological mechanisms seem to account for the value of an intact marriage in childrens lives.
From a sociological perspective, marriage allows families to benet from shared labor within the household,
income streams from two parents, and the economic resources of two sets of kin.
24
A married mom and
dad typically invest more time, aection, and oversight into parenting than does a single parent; as impor-
tantly, they tend to monitor and improve the parenting of one another, augmenting one anothers strengths,
balancing one anothers weaknesses, and reducing the risk that a child will be abused or neglected by an ex-
hausted or angry parent.
25
Te trust and commitment associated with marriage also give a man and a woman
a sense that they have a future together, as well as a future with their children. Tis horizon of commitment,
in turn, motivates them to invest practically, emotionally, and nancially at higher levels in their children
than cohabiting or single parents.
26

Marriage is particularly important in binding fathers to their children. For men, marriage and fatherhood
are a package deal. Because the fathers role is more discretionary in our society (and every known human
society) than the mothers role, it depends more on the normative expectations of and social supports pro-
vided to fathers by marriage. Marriage positions men to receive the regular encouragement, direction, and
advice of the mother of his children, and encourages them to pay attention to that input.
27
Not surprisingly,
cohabiting fathers are less practically and emotionally invested in their children than are married fathers.
28

Nonresidential fathers see their children much less often than do married, residential fathers, and their
involvement is not consistently related to positive outcomes for children.
29
By contrast, married fathers can
exercise an abiding, important, and positive inuence on their children, and are especially likely to do so in
a happy marriage.
30

Biology also matters. Studies suggest that men and women bring dierent strengths to the parenting en-
terprise, and that the biological relatedness of parents to their children has important consequences for the
young, especially girls. Although there is a good deal of overlap in the talents that mothers and fathers bring
SER 63
12
to parenting, the evidence also suggests that there are crucial sex dierences in parenting. Mothers are more
sensitive to the cries, words, and gestures of infants, toddlers, and adolescents, and, partly as a consequence,
they are better at providing physical and emotional nurture to their children.
31
Tese special capacities of
mothers seem to have deep biological underpinnings: during pregnancy and breastfeeding women experi-
ence high levels of the hormone peptide oxytocin, which fosters aliative behaviors.
32

Fathers excel when it comes to providing discipline, ensuring safety, and challenging their children to em-
brace lifes opportunities and confront lifes diculties. Te greater physical size and strength of most fa-
thers, along with the pitch and inection of their voice and the directive character of their speaking, give
them an advantage when it comes to discipline, an advantage that is particularly evident with boys, who are
more likely to comply with their fathers than their mothers discipline.
33
Likewise, fathers are more likely
than mothers to encourage their children to tackle dicult tasks, endure hardship without yielding, and
seek out novel experiences.
34
Tese paternal strengths also have deep biological underpinnings: Fathers
typically have higher levels of testosteronea hormone associated with dominance and assertivenessthan
do mothers.
35
Although the link between nature, nurture, and sex-specic parenting talents is undoubtedly
complex, one cannot ignore the overwhelming evidence of sex dierences in parenting dierences that
marriage builds on to the advantage of children.
Te biological relationship between parents and children also matters to the young. Studies suggest that
biological parents invest more money and time in their ospring than do stepparents.
36
New research by
University of Arizona psychologist Bruce Ellis also suggests that the physical presence of a biological father
is important for the sexual development of girls. Specically, he thinks that one reason that girls who live
apart from their biological father develop sexually at an earlier age than girls who live with their biologi-
cal father is that they are more likely to be exposed to the pheromonesbiological chemicals that convey
sexual information between personsof unrelated males. He also nds that girls who are exposed to the
presence of a mothers boyfriend or a stepfather reach puberty at an earlier age than girls who are raised
by unpartnered single mothers.
37
Tere is clearly more research to be done in this area, but the data clearly
suggest that one reason marriage is so valuable is that it helps to bind a childs biological parents to the child
over the course of her life.
Sara McLanahan and Gary Sandefur, sociologists at Princeton and Wisconsin, respectively, sum up the
reasons that marriage matters for children in this way: If we were asked to design a system for making sure
that childrens basic needs were met, we would probably come up with something quite similar to the two-
parent ideal. Such a design, in theory, would not only ensure that children had access to the time and money
of two adults, it also would provide a system of checks and balances that promoted quality parenting. Te
fact that both parents have a biological connection to the child would increase the likelihood that the parents
would identify with the child and be willing to sacrice for that child, and it would reduce the likelihood
that either parent would abuse the child.
38
Over the past few decades, we have experimented with various
alternatives to marriage, and the evidence is now clear: Children raised in married, intact families generally
SER 64
13
do better in every area of life than those raised in various alternative family structures. Tose who care about
the well-being of childrenas every citizen shouldshould care about the health of modern marriage.
Te Well-being of Adults
While the most important benets of marriage redound to children, marriage also has signicant benets
for the adult men and women who enter into it. Both married men and women benet nancially, emo-
tionally, physically, and socially from marriage. However, we must also note that there are often gender dif-
ferences in the benets of marriage, and that the benets of marriage for women are more sensitive to the
quality of marriage than are the benets of marriage for men.
Te nancial advantages of marriage are clear. Married men and women are more likely to accumulate
wealth and to own a home than unmarried adults, even compared to similarly situated cohabiting or single
adults.
39
Married men earn between 10 and 40 percent more money than single men with similar profes-
sional and educational backgrounds.
40
Married women generally do not experience a marriage premium
in their earnings, but this is because most women combine marriage with motherhood, which tends to
depress womens earnings.
41
Te material benets of marriage also extend to women from disadvantaged
backgrounds, who are much less likely to fall into poverty if they get and stay married.
42
In general, mar-
riage allows couples to pool resources and share labor within the household. Te commitment associated
with marriage provides couples with a long-term outlook that allows them to invest together in housing and
other long-term assets.
43
Te norms of adult maturity associated with marriage encourage adults to spend
and save in a more responsible fashion.
44

Marriage also promotes the physical and emotional health of men and women. Married adults have longer
lives, less illness, greater happiness, and lower levels of depression and substance abuse than cohabiting and
single adults. Spouses are more likely to encourage their partners to monitor their health and seek medical
help if they are experiencing an illness.
45
Te norms of adult maturity and delity associated with marriage
encourage men and women to avoid unhealthy or risky behaviors, from promiscuous sex to heavy alcohol
use.
46
Te increased wealth and economic stability that come from being married enable married men and
women to seek better medical care.
47
Te emotional support furnished by most marriages reduces stress, and
the stress hormones, that often cause ill health and mental illness.
48
Men are particularly apt to experience
marriage-related gains in their life expectancy and overall health. Women also gain, but their marriage-
related health benets depend more on the quality of their marriages: women in low-quality marriages are
more likely to experience health problems and psychological distress than single women, while good mar-
riages give women an important psychological and physical boost.
49

Marriage also plays a crucial role in civilizing men. Married men are less likely to commit a crime, to be
sexually promiscuous or unfaithful to a longtime partner, or to drink to excess.
50
Tey also attend church
more often, spend more time with kin (and less time with friends), and work longer hours.
51
One study,
SER 65
14
for instance, showed that only 4 percent of married men had been unfaithful in the past year, compared to
16 percent of cohabiting men and 37 percent of men in an ongoing sexual relationship with a woman.
52

Longitudinal research by University of Virginia sociologist Steven Nock suggests that these eects are not
an artifact of selection but rather a direct consequence of marriage. Nock tracked men over time as they
transitioned from singlehood to marriage and found that mens behaviors actually changed in the wake of a
marriage: After tying the knot, men worked harder, attended fewer bars, increased their church attendance,
and spent more time with family members.
53
For many men, marriage is a rite of passage that introduces
them fully into an adult world of responsibility and self-control.
But why does marriage play such a crucial role in civilizing menin making them harder workers, more
faithful mates, and more peaceable citizens? Part of the answer is sociological. Te norms of trust, delity,
sacrice, and providership associated with marriage give men clear directions about how they should act
toward their wives and childrennorms that are not clearly applicable to non-marital relationships. A mar-
ried man also gains status in the eyes of his wife, her family, their friends, and the larger community when
they signal their intentions and their maturity by marrying.
54
Most men seek to maintain their social status
by abiding by societys norms; a society that honors marriage will produce men who honor their wives and
care for their children.
Biology also matters. Research on men, marriage, and testosterone nds that married menespecially mar-
ried men with childrenhave more modest levels of testosterone than do single men. (Cohabiting men also
have lower levels of testosterone than single men.) Long-term, stable, procreative relationships moderate
mens testosterone levels.
55
Judging by the literature on testosterone, this would in turn make men less in-
clined to aggressive, promiscuous, and otherwise risky behavior.
56
Of course, marriage also matters in unique ways for women. When it comes to physical safety, married
women are much less likely to be victims of violent crimes. For instance, a 1994 Justice Department report
found that single and divorced women were more than four times more likely to be the victims of a violent
crime, compared to married women.
57
Married women are also much less likely to be victimized by a partner
than women in a cohabiting or sexually intimate dating relationship. One study found that 13 percent of co-
habiting couples had arguments that got violent in the past year, compared to 4 percent of married couples.
58

Studies suggest that one reason women in non-marital relationships are more likely to be victimized is that
these relationships have higher rates of indelity, and indelity invites serious conict between partners.
59

For most women, therefore, marriage is a safe harbor.
It is not just marital status but the very ideal of marriage that matters. Married persons who value marriage
for its own sakewho oppose cohabitation, who think that marriage is for life, and who believe that it is
best for children to be reared by a father and a mother as husband and a wifeare signicantly more likely
to experience high-quality marriages, compared to married persons who are less committed to the institu-
tion of marriage.
60
Men and women with a normative commitment to the ideal of marriage are also more
likely to spend time with one another and to sacrice for their relationship.
61
Other research indicates that
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15
such a commitment is particularly consequential for men: that is, mens devotion to their wife depends more
on their normative commitment to the marriage ideal than does womens devotion to their husbands.
62

Simply put, men and women who marry for life are more likely to experience a happy marriage than men
and women who marry so long as they both shall love.
What is clear is that marriage improves the lives of those men and women who accept its obligations, es-
pecially those who seek the economic, emotional, and health benets of modern life. Perhaps some modern
men do not believe they need to be domesticated or do not wish to be burdened with the duties of child-
rearing; and perhaps some modern women do not believe they need the security that a good marriage
uniquely oers or fear that family life will interfere with their careers. But the data suggest that such desires
can sometimes lead men and women astray, and that those who embrace marriage live happier lives than
those who seek a false freedom in bachelorhood, cohabitation, or divorce.
Te Public Consequences of Marital Breakdown
Te public consequences of the recent retreat from marriage are substantial. As the evidence shows, marital
breakdown reduces the collective welfare of our children, strains our justice system, weakens civil society,
and increases the size and scope of governmental power.
Te numbers are indeed staggering. Every year in the United States, more than one million children see
their parents divorce and 1.5 million children are born to unmarried mothers. Te collective consequences
of this family breakdown have been catastrophic, as demonstrated by myriad indicators of social well-being.
Take child poverty. One recent Brookings survey indicates that the increase in child poverty in the United
States since the 1970s is due almost entirely to declines in the percentage of children reared in married
families, primarily because children in single-parent homes are much less likely to receive much material
support from their fathers.
63

Or take adolescent well-being. Penn State sociologist Paul Amato estimated how adolescents would fare
if our society had the same percentage of two-parent biological families as it did in 1960. His research in-
dicates that this nations adolescents would have 1.2 million fewer school suspensions, 1 million fewer acts
of delinquency or violence, 746,587 fewer repeated grades, and 71,413 fewer suicides.
64
Similar estimates
could be done for the collective eect of family breakdown on teen pregnancy, depression, and high school
dropout rates. Te bottom line is this: children have paid a heavy price for adult failures to get and stay
married.
Public safety and our justice system have also been aected by the retreat from marriage. Even though
crime rates have fallen in recent years, the percentage of the population in jail has continued to rise: from .9
percent of the population in 1980 to 2.4 percent in 2003, which amounts to more than 2 million men and
women.
65
Public expenditures on criminal justicepolice, courts, and prisonsrose more than 350 percent
in the last 20 years, from $36 billion in 1982 to $167 billion in 2001.
66
Empirical research on family and
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16
crime strongly suggests that crime is driven in part by the breakdown of marriage. George Akerlof, a Nobel
laureate in economics, argues that the crime increase in the 1970s and 1980s was linked to declines in the
marriage rate among young working-class and poor men.
67
Harvard sociologist Robert Sampson concludes
from his research on urban crime that murder and robbery rates are closely linked to family structure. In his
words: Family structure is one of the strongest, if not the strongest, predictor of variations in urban violence
across cities in the United States.
68
Te close empirical connection between family breakdown and crime
suggests that increased spending on crime-ghting, imprisonment, and criminal justice in the United States
over the last 40 years is largely the direct or indirect consequence of marital breakdown.
Public spending on social services also has risen dramatically since the 1960s, in large part because of in-
creases in divorce and illegitimacy. Estimates vary regarding the costs to the taxpayer of family breakdown,
but they clearly run into the many billions of dollars. One Brookings study found that the retreat from mar-
riage was associated with an increase of $229 billion in welfare expenditures from 1970 to 1996.
69
Another
study found that local, state, and federal governments spend $33 billion per year on the direct and indirect
costs of divorcefrom family court costs to child support enforcement to TANF and Medicaid.
70
Increases
in divorce also mean that family judges and child support enforcement agencies play a deeply intrusive role
in the lives of adults and children aected by divorce, setting the terms for custody, child visitation, and child
support for more than a million adults and children every year. Clearly, when the family fails to govern itself,
government steps in to pick up the pieces.
Te link between the size and scope of the state and the health of marriage as an institution is made even
more visible by looking at trends outside the United States. Countries with high rates of illegitimacy and
divorce, such as Sweden and Denmark, spend much more money on welfare expenditures, as a percentage
of their GDP, than countries with relatively low rates of illegitimacy and divorce, such as Spain and Japan.
71

Although there has been no denitive comparative research on state expenditures and family structure,
and despite that factors such as religion and political culture may confound this relationship, the correla-
tion between the two is suggestive. Of course, we also suspect that the relationship between state size and
family breakdown runs both ways. For instance, earlier research on Scandinavian countries by sociologists
David Popenoe and Alan Wolfe suggests that increases in state spending are associated with declines in
the strength of marriage and family.
72
Taken together, the retreat from marriage seems to go hand in hand
with more expensive and more intrusive government; family breakdown goes hand in hand with growing
hardship in disadvantaged communities, making the call for still more government intervention even more
irresistible. It is a pathological spiral, one that only a restoration of marriage can hope to reverse.
Four Treats to Marriage
Until forty years ago, marriage governed sex, procreation, and child-rearing for the vast majority of adults. In
recent years, marriages hold on these three domains of social life has weakened, with serious negative conse-
quences for society as a whole. Four developmentsthe sad eect of decoupling marriage, sex, procreation,
and child-bearingare especially troubling: divorce, illegitimacy, cohabitation, and same-sex marriage.
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17
Divorce. From 1960 to 2000, the divorce rate more than doubled in the United States, from about 20 per-
cent to about 45 percent of all rst marriages. (Note: Te divorce rate has declined modestly since 1980.)
Te data suggests that approximately two-thirds of all divorces involving children break up low-conict
marriages where domestic violence or emotional abuse is not a factor in the divorce.
73
Unfortunately, these
children seem to bear the heaviest burden from the divorce of their parents.
74
Children from broken homes
are signicantly more likely to divorce as adults, to experience marital problems, to suer from mental ill-
ness and delinquency, to drop out of high school, to have poor relationships with one or both parents, and
to have diculty committing themselves to a relationship.
75
Furthermore, in most respects, remarriage is
no help to children of divorce. Children who grow up in stepfamilies experience about the same levels of
educational failure, teenage pregnancy, and criminal activity as children who remain in a single-parent fam-
ily after a divorce.
76

Divorce is also associated with poverty, depression, substance abuse, and poor health among adults.
77
More
broadly, widespread divorce poisons the larger culture of marriage, insofar as it sows distrust, insecurity, and
a low-commitment mentality among married and unmarried adults.
78
Couples who take a permissive view
of divorce are signicantly less likely to invest themselves in their marriages and less likely to be happily
married themselves.
79
For all these reasons, divorce threatens marriage, hurts children, and has had dire
consequences for the nation as a whole.
Illegitimacy (non-marital child-bearing). From 1960 to 2003, the percentage of children born out of wedlock
rose from 5 to 35 percent.
80
Although growing numbers of children born out of wedlock are born into co-
habiting unions42 percent according to one recent estimatemost children born outside of marriage will
spend the majority of their childhood in a single parent home, in part because the vast majority of cohabit-
ing unions, even ones involving children, end in dissolution.
81
Te biggest problem with illegitimacy is that
it typically denies children the opportunity to have two parents who are committed daily to their emotional
and material welfare.
82
As noted above, children raised in single-parent families without the benet of a
married mother and father are two to three times more likely to experience serious negative life outcomes
such as imprisonment, depression, teenage pregnancy, and high school failure, compared to children from
intact, married familieseven after controlling for socioeconomic factors that might distort the relationship
between family structure and child well-being.
83

Non-marital child-bearing also has negative consequences for men and women. Women who bear children
outside of marriage are signicantly more likely to experience poverty, to drop out of high school, and to
have diculty nding a good marriage partner, even when compared to women from similar socioeconomic
backgrounds.
84
Men who father children outside of marriage are signicantly more likely to experience
educational failure, earn less, and have diculty nding a good marriage partner, even after controlling for
socioeconomic factors.
85
Taken together, the rise of illegitimacy has been disastrous for children and adults,
men and women, individuals and society.
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18
Cohabitation. Since the early 1970s, cohabitation has increased more than nine-fold in the United States,
from 523,000 couples in 1970 to ve million couples in 2004.
86
Recent estimates suggest that 40 percent of
children will spend some time growing up with one or both parents in a cohabiting union.
87
Te growth of
cohabitation in the United States is an unwelcome development. Adults in cohabiting unions face higher
rates of domestic violence, sexual indelity, and instability, compared to couples in marital unions.
88
Most
studies nd that cohabiting couples who go on to marry also face a higher risk of divorce, compared to
couples who marry without cohabiting (although the risk of divorce for couples who only cohabit after
an engagement does not appear to be higher than for married couples who did not cohabit).
89
Cohabiting
unions are typically weaker than marriages, and appear more likely to lead to poor relationship outcomes.
Cohabitation does not entail the same level of moral and legal commitment as marriage, couples often do
not agree about the status of their relationship, and cohabiting couples do not receive as much social support
from friends and family for their relationship as do married couples.
90

Cohabiting unions are particularly risky for children. Children reared by cohabiting couples are more likely
to engage in delinquent behavior, be suspended from school, and cheat in school, compared to children
reared by a married mother and father.
91
Children cohabiting with an unrelated adult male face dramati-
cally higher risks of sexual or physical abuse, compared to children in intact, married families. For instance,
one Missouri study found that preschool children living in households with unrelated adults (typically a
mothers boyfriend) were nearly 50 times more likely to be killed than were children living with both bio-
logical parents.
92
Children also suer from the instability associated with cohabiting unions. Even when
children are born into cohabiting households headed by both their biological parents, they are likely to see
one of their parents depart from the relationship. One recent study found that 50 percent of children born
to cohabiting couples see their parents break up by their fth year, compared to just 15 percent of children
born to a marital union.
93
For all these reasons, cohabiting unions are not a good alternative to marriage but
are a threat, and they surely do not provide a good environment for the rearing of children.
Same-Sex Marriage. Although the social scientic research on same-sex marriage is in its infancy, there are
a number of reasons to be concerned about the consequences of redening marriage to include same-sex
relationships. First, no one can denitively say at this point how children are aected by being reared by
same-sex couples. Te current research on children reared by them is inconclusive and underdeveloped
we do not yet have any large, long-term, longitudinal studies that can tell us much about how children are
aected by being raised in a same-sex household.
94
Yet the larger empirical literature on child well-being
suggests that the two sexes bring dierent talents to the parenting enterprise, and that children benet from
growing up with both biological parents. Tis strongly suggests that children reared by same-sex parents
will experience greater diculties with their identity, sexuality, attachments to kin, and marital prospects as
adults, among other things. But until more research is available, the jury is still out.
Yet there remain even deeper concerns about the institutional consequences of same-sex marriage for mar-
riage itself. Same-sex marriage would further undercut the idea that procreation is intrinsically connected
to marriage. It would undermine the idea that children need both a mother and a father, further weakening
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19
the societal norm that men should take responsibility for the children they beget. Finally, same-sex marriage
would likely corrode marital norms of sexual delity, since gay marriage advocates and gay couples tend to
downplay the importance of sexual delity in their denition of marriage. Surveys of men entering same-
sex civil unions in Vermont indicate that 50 percent of them do not value sexual delity, and rates of sexual
promiscuity are high among gay men.
95
For instance, Judith Stacey, professor of sociology at New York
University and a leading advocate of gay marriage, hopes that same-sex marriage will promote a pluralist
expansion of the meaning, practice, and politics of family life in the United States where perhaps some
might dare to question the dyadic limitations of Western marriage and seek some of the benets of extended
family life through small group marriages. . . .
96
Our concerns are only reinforced by the legalization of same-sex marriage in Belgium, Canada, the Neth-
erlands, and Spainand its legalization in the Commonwealth of Massachusetts. Same-sex marriage has
taken hold in societies or regions with low rates of marriage and/or fertility.
97
For instance, Belgium, Cana-
da, Massachusetts, the Netherlands, and Spain all have fertility rates well below the replacement level of 2.1
children per woman.
98
Tese are societies in which child-centered marriage has ceased to be the organizing
principle of adult life. Seen in this light, same-sex marriage is both a consequence of and further stimulus
to the abolition of marriage as the preferred vehicle for ordering sex, procreation, and child-rearing in the
West. While there are surely many unknowns, what we do know suggests that embracing same-sex marriage
would further weaken marriage itself at the very moment when it needs to be most strengthened.
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20
IV. ANALYSIS FROM POLITICAL AND MORAL PHILOSOPHY:
THE INTRINSIC GOODS OF MARRIAGE
Te empirical evidence in support of marriage is clear. When it comes to the myriad goods of modern social
lifeeconomic well-being, safety and security, personal happiness, ourishing community, limited govern-
mentmarriage is a boon to adults and especially children. But the rational defense of marriage need not be
based solely in data about its utility, and those who choose to marry are not usually motivated, rst and fore-
most, by any utilitarian calculus. Only when marriage is valued as good in itself, and not simply as a means
to other good ends, will children, adults, and societies reap its profound benets. Tis requires defenders
of marriageteachers, poets, religious leaders, parents and grandparents, role models of every kindto
describe and defend why marriage is a choice-worthy way of life in terms that resonate with lived human
experience. Some moral philosophers have engaged in extended reection on the nature of marriage as a
profound human good, seeking by precise analysis to better understand what most people accept as a matter
of commonsense. Not all signatories to this statement accept this natural law approach or perspective, but
we include it here since it represents a view that some thoughtful supporters of marriage nd compelling.
Marriage oers men and women as spouses a good they can have in no other way: a mutual and complete
giving of the self. Tis act of reciprocal self-giving is made solemn in a covenant of delity, a vow to stand
by one another as husband and wife amid lifes joys and sorrows, and to raise the children that may come
as the fruit of this personal, sexual, and familial union. Marriage binds two individuals together for life, and
binds them jointly to the next generation that will follow in their footsteps. Marriage elevates, orders, and
at times constrains our natural desires to the higher moral end of delity and care.
Te marriage vow by its nature includes permanence and exclusivity: A couple would lose the very good
of the union they seek if they saw their marriage as temporary, or as open to similar sharing with others.
What exactly would a temporary promise to love mean? Would it not reduce ones spouse to a source of
pleasure for oneself, to be desired and kept only so long as ones own desires are fullled? By weakening the
permanence of marriage, the contemporary culture of divorce undermines the act of self-giving that is the
foundation of marriage. Te marriage vow, seen as binding, is meant to secure some measure of certainty
in the face of lifes many unknownsthe certainty that this unknown future will be faced together until
death separates. At the same time, marriage looks beyond the married couple themselves to their potential
ospring, who secure the future from this generation to the next.
Marriage is thus by its nature sexual. It gives a unique unitive and procreative meaning to the sexual drive,
distinguishing marriage from other close bonds. Te emotional, spiritual, and psychological closeness of a
married couple is realized in the unique biological unity that occurs between a man and a woman united
as husband and wife in sexual intercourse. In marital sexual union, the love of husband and wife is given
concrete embodiment. Our bodies are not mere instruments. Our sexual selves are not mere genitalia. Male
and female are made to relate to and complete one another, to nd unity in complementarity and comple-
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21
mentarity in sexual dierence. Te same sexual act that unites the spouses is also the act that creates new life.
Sharing of lives is, in sex, also a potential sharing of life. In procreation, marital love nds its highest realiza-
tion and expression. In the family, children nd the safety, security, and support they need to reach their full
potential, grounded in a public, prior commitment of mother and father to become one family together.
Tis deeper understanding of marriage is not narrowly religious. It is the articulation of certain universal
truths about human experience, an account of the potential elevation of human nature in marriage that all
human beings can rationally grasp. Many secular-minded couples desire these extraordinary things from
marriage: a permanent and exclusive bond of love that unites men and women to each other and to their
children.
But marriage cannot survive or ourish when the ideal of marriage is eviscerated. Radically dierent under-
standings of marriage, when given legal status, threaten to create a culture in which it is no longer possible
for men and women to understand the unique goods that marriage embodies: the delity between men and
women, united as potential mothers and fathers, bound to the children that the marital union might pro-
duce. Maintaining a culture that endorses the good of marriage is essential to ensuring that marriage serves
the common good. And in a free society such as our own, a strong marriage culture also fosters liberty by
encouraging adults to govern their own lives and rear their children responsibly.
As honest advocates of same-sex marriage have conceded, to abandon the conjugal conception of marriage
the idea of marriage as a union of sexually complementary spouseseliminates any ground of principle for
limiting the number of partners in a marriage to two. It would open the door to legalizing polygamy and
polyamory (group marriage), and produce a culture in which marriage loses its signicance and standing,
with disastrous results for children begotten and reared in a world of post-marital chaos.
Te law has a crucial place in sustaining this deeper understanding of marriage and its myriad human goods.
Te law is a teacher, instructing the young either that marriage is a reality in which people can choose to
participate but whose contours individuals cannot remake at will, or teaching the young that marriage is a
mere convention, so malleable that individuals, couples, or groups can choose to make of it whatever suits
their desires, interests, or subjective goals of the moment.
Even as we defend the good of marriage as a way of life for individual men and women, therefore, we can-
not ignore the culture and polity that sustain that way of life. Oxford University philosopher Joseph Raz, a
self-described liberal, is rightly critical of those forms of liberalism which suppose that law and government
can and should be neutral with respect to competing conceptions of moral goodness. As he put it:
Monogamy, assuming that it is the only valuable form of marriage, cannot be practiced by
an individual. It requires a culture which recognizes it, and which supports it through the
publics attitude and through its formal institutions.
99

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22
Professor Razs point is that if monogamy is indeed a key element in a sound understanding of marriage,
this ideal needs to be preserved and promoted in law and in policy. Te marriage culture cannot ourish in
a society whose primary institutions, including universities, courts, legislatures, and religious institutions,
not only fail to defend marriage but actually undermine it both conceptually and in practice. Te young will
never learn what it means to get married and stay married, to live in delity to the spouse they choose and
the children they must care for, if the social world in which they come of age treats marriage as fungible or
insignicant.
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23
V. AMERICAN EXCEPTIONALISM AND THE WAY FORWARD
When it comes to family life, the great paradox of our time is this: Every society (including our own) that
we think is generally best for human ourishingstable, democratic, developed, and freeis experiencing
a radical crisis around human generativity: enormous increases in family fragmentation and fatherlessness,
usually coupled with the collapse of fertility to levels which, if continued, spell demographic and social de-
cline. Suddenly, developed nations are nding themselves unable to accomplish the great, simple task that
every human society must do: bring young men and women together to marry and raise the next generation
together.
Te United States has in some ways been the leader in this retreat from marriage, but in other ways (espe-
cially in recent years) has shown signs of unusual, renewed vitality. We are the only Western nation we know
of with a marriage movement.
100
We are the only large, developed nation to experience a sustained rise in
fertility back to near-replacement levels.
Te great task for American exceptionalism in our generation is to sustain and energize this movement for
the renewal of marriage. We need to transmit a stronger, healthier, and more loving marriage culture to the
next generation, so that each year more children are raised by their own mother and father united by a loving
marriage, and so those children can grow up to have ourishing marriages themselves.
Creating such a marriage culture is not the job for government. Families, religious communities, and civic
institutions, along with intellectual, moral, religious, and artistic leaders, need to point the way. But law and
public policy will either reinforce and support these goals or undermine them. We call upon our nations leaders,
and our fellow citizens, to support public policies that strengthen marriage as a social institution. Tis nation
must re-establish the normative understanding of marriage as the union of a man and a woman, intended
for life, welcoming and raising together those children who are the fruit of their self-giving love, children
who might aspire to marry and raise children of their own, renewing the lifecycle and extending the family
tree from generation to generation.
In particular, we single out ve areas for special attention:
1. Protect the public understanding of marriage as the union of one man with one woman as husband
and wife.
Te laws understanding of marriage is powerful. Judges should not attempt to redene marriage by im-
posing a new legal standard of what marriage means, or falsely declaring that our historic understanding
of marriage as the union of one man and one woman is rooted in animus or unreason. Nor should the law
send a false message to the next generation that marriage itself is irrelevant or secondary, by extending
marriage benets to couples or individuals who are not married.
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24
a. Resist legislative attempts to create same-sex marriage; use legislative mechanisms to protect the
institution of marriage as a union of a male and a female as sexually complementary spouses. We urge
our elected ocials to support legislation that will properly dene and promote a true conception of
marriage. Likewise, we call on our elected representatives to vote against any bills that would deviate
from this understanding of marriage. (We do not object to two or more persons, whether related or
not, entering into legal contracts to own property together, share insurance, make medical decisions
for one another, and so on.)
b. End the court-created drive to create and impose same-sex marriage. We call on courts directly to
protect our understanding of marriage as the union of husband and wife. Radical judicial experiments
that coercively alter the meaning of marriage are bound to make creating and sustaining a marriage
culture more dicult, especially when such actions are manifestly against the will of the American
people.
c. Refuse to extend marital legal status to cohabiting couples. Powerful intellectual institutions in fam-
ily law, including the American Law Institute, have proposed that America follow the path of many
European nations and Canada in easing or erasing the legal distinction between marriage and cohabi-
tation. But we believe it is unjust as well as unwise to either (a) impose marital obligations on people
who have not consented to them or (b) extend marital benets to couples who are not married.
2. Investigate divorce law reforms.
Under Americas current divorce system, courts today provide less protection for the marriage contract
than they do for an ordinary business contract. Some of us support a return to a fault-based divorce
system, others of us do not. But all of us recognize that the current system is a failure in both practical
and moral terms, and deeply in need of reform. We call for renewed eorts to discover ways that law can
strengthen marriage and reduce unnecessarily high rates of divorce. We arm that protecting women
and children from domestic violence is a critically important goal. But because both children and adults
in non-marital unions are at vastly increased risk for both domestic violence and abuse, encouraging high
rates of family fragmentation is not a good strategy for protecting women from violent men, or children
from abusive homes.
Among the proposals we consider worthy of more consideration:
a. Extend waiting periods for unilateral no-fault divorce. Require couples in nonviolent marriages to
attend (religious, secular, or public) counseling designed to resolve their dierences and renew their
marital vows.
b. Permit the creation of prenuptial covenants that restrict divorce for couples who seek more exten-
sive marriage commitments than current law allows. (Te enforcement by secular courts of Orthodox
Jewish marriage contracts may provide a useful model).
c. Expand court-connected divorce education programs to include divorce interventions (such as
PAIRS or Retrouvaille) that help facilitate reconciliations as well as reducing acrimony and litigation.
d. Apply standards of fault to the distribution of property, where consistent with the best interests
of children. Spouses who are abusive or unfaithful should not share marital property equally with
innocent spouses.
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25
e. Create pilot programs on marriage education and divorce interventions in high-risk communi-
ties, using both faith-based and secular programs; track program eectiveness to establish best prac-
tices that could be replicated elsewhere.
3. End marriage penalties for low-income Americans.
To address the growing racial and class divisions in marriage, federal and state governments ought to act
quickly to eliminate the marriage penalties embedded in means-tested welfare and tax policiessuch as the
Earned Income Tax Credit (EITC) and Medicaidthat aect couples with low and moderate incomes.
101
It
is unconscionable that government levies substantial nancial penalties on low-income parents who marry.
Other approaches to strengthening marriage for couples and communities at risk include public informa-
tion campaigns, marriage education programs, and jobs programs for low-income couples who wish to get
and stay married. Experimenting with such new initiatives allows scholars to determine which measures are
best suited to the task at hand.
102

4. Protect and expand pro-child and pro-family provisions in our tax code.
5. Protect the interests of children from the fertility industry.
Treating the making of babies as a business like any other is fundamentally inconsistent with the dignity
of human persons and the fundamental needs of children. Among the proposals we urge Americans to
consider, following in the footsteps of countries such as Italy and Sweden:
a. Ban the use of anonymous sperm and egg donation for all adults. Children have a right to know
their biological origins. Adults have no right to strip children of this knowledge to satisfy their own
desires for a family.
b. Consider restricting reproductive technologies to married couples.
c. Refuse to create legally fatherless children. Require men who are sperm donors (and/or clinics as
their surrogates) to retain legal and nancial responsibility for any children they create who lack a
legal father.
Te most important changes underwriting the current United States fertility industry are not technological;
rather they are social and legal. Both law and culture have stressed the interests of adults to the exclusion
of the needs and interests of children. Parents seeking children deserve our sympathy and support. But we
ought not, in doing so, deliberately create an entire class of children who are deprived of their natural human
right to know their own origins and their profound need for devoted mothers and fathers.
In sum, families, religious communities, community organizations, and public policymakers must work to-
gether toward a great goal: strengthening marriage so that each year more children are raised by their own
mother and father in loving, lasting marital unions. Te future of the American experiment depends upon
it. And our children deserve nothing less.
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26
NOTES
1 Steven L. Nock. 2005. Marriage as a Public Issue. Te Future of Children15: 1332.
2 W. Bradford Wilcox et al. 2005. Why Marriage Matters, Second Edition: Twenty-Six Conclusions from the Social
Sciences. New York: Institute for American Values. Lorraine Blackman, Obie Clayton, Norval Glenn, Linda
Malone-Colon, and Alex Roberts. 2005. Te Consequences of Marriage for African Americans: A Comprehensive
Literature Review. New York: Institute for American Values.
3 David Popenoe. 1988. Disturbing the Nest: Family Change and Decline in Modern Societies. Aldine de Gruyter.
Alan Wolfe. 1989. Whose Keeper? Social Science and Moral Obligation. Berkeley: University of California
Press.
4 http://www.law2.byu.edu/marriage_family/Charles%20Reid.pdf. W. Bradford Wilcox and Steven L. Nock.
2006. Whats Love Got to Do with It? Ideology, Equity, Gender, and Womens Marital Happiness. Social
Forces 84: 13211345. Vaughn R.A. Call and Tim B. Heaton. 1997. Religious Inuence on Marital Stability.
Journal for the Scientic Study of Religion 36: 382392.
5 W. Bradford Wilcox et al. 2005.
6 Kristin Anderson Moore, Susan M. Jekielek, and Carol Emig, 2002. Marriage from a Childs Perspective:
How Does Family Structure Aect Children, and What Can be Done about It? Research Brief, June 2002.
Washington, DC: Child Trends. p. 6.
7 For summaries from Brookings and Princeton, see Sara McLanahan, Elisabeth Donahue, and Ron Haskins.
2005. Introducing the Issue. Te Future of Children 15: 312. For the Center for Law and Social Policys
statement, see Mary Parke. 2003. Are Married Parents Really Better for Children? Washington, DC: Center for
Law and Social Policy. For the Institute for American Values statement, see Wilcox et al. 2005.
8 Elizabeth Marquardt. 2005a. Family Structure and Childrens Educational Outcomes. New York: Institute for
American Values.
9 Ibid.
10 Sara McLanahan and Gary Sandefur. 1994. Growing Up with a Single Parent. Cambridge: Harvard University
Press.
11 Wilcox et al. 2005. Elizabeth Marquardt. 2005b. Between Two Worlds: Te Inner Lives of Children of Divorce.
New York: Crown.
12 Gunilla Ringback Weitoft, Anders Hjern, Bengt Haglund, and Mans Rosen. 2003. Mortality, Severe
Morbidity, and Injury in Children Living with Single Parents in Sweden: A Population-Based Study. Te
Lancet 361: 289295.
13 Sara McLanahan. 1997. Parent Absence or Poverty: Which Matters More? In G. Duncan and J. Brooks-
Gunn, Consequences of Growing Up Poor. New York: Russell Sage.
14 Kyle Pruett. 2000. Fatherneed. New York: Broadway. P. 207. See also Marquardt. 2005b and David Popenoe.
1996. Life Without Father. Cambridge: Harvard University Press.
15 Pruett. 2000. Pp. 204208.
16 Bruce Ellis. 2002. Timing of Pubertal Maturation in Girls: An Integrated Life History Approach. Psychology
Bulletin 130: 920958.
17 McLanahan and Sandefur. 1994. Bruce Ellis et al. 2003. Does Father Absence Place Daughters at Special Risk
for Early Sexual Activity and Teenage Pregnancy? Child Development 74: 801821.
18 Ellis et al. 2003.
19 Wilcox et al. 2005.
20 Marquardt. 2005a. Paul Amato. 2005. Te Impact of Family Formation Change on the Cognitive, Social, and
Emotional Well-Being of the Next Generation. Te Future of Children 15: 7596.
21 Cynthia Harper and Sara McLanahan. 2004. Father Absence and Youth Incarceration. Journal of Research on
Adolescence 14: 369397.
22 Harper and McLanahan. 2004.
SER 78
27
23 Brian DOnofrio et al. 2006. A Genetically Informed Study of the Processes Underlying the Association
between Parental Marital Instability and Ospring Adjustment. Developmental Psychology. Forthcoming.
Brian DOnofrio et al. 2005. A Genetically Informed Study of Marital Instability and Its Association With
Ospring Psychopathology. Journal of Abnormal Psychology. 114: 570586.
24 Wilcox et al. 2005. McLanahan and Sandefur. 1994.
25 Wilcox et al. 2005. Popenoe. 1996.
26 Sandra Hoerth and Kermyt Anderson. 2003. Are All Dads Equal? Biology Versus Marriage as a Basis for
Paternal Involvement. Journal of Marriage and Family 65: 213232. Wilcox et al. 2005.
27 Ross Parke. 1996. Fatherhood. Cambridge: Harvard University Press. p.101.
28 Hoerth and Anderson. 2003.
29 Valarie King and Holly Heard. 1999. Nonresident Father Visitation, Parental Conict, and Mothers
Satisfaction: Whats Best for Child Well-Being? Journal of Marriage and the Family 61: 385396. Elaine
Sorenson and Chava Zibman. 2000. To What Extent Do Children Benet from Child Support? Washington, DC:
Te Urban Institute.
30 Paul Amato. 1998. More Tan Money? Mens Contributions to Teir Childrens Lives. In Alan Booth and
A.C. Crouter, (Eds.), Men in Families: When Do Tey Get Involved? What Dierence Does It Make? Mahwah, NJ:
Lawrence Erlbaum Associates. Belsky, J., Youngblade L., Rovine, M., & Volling, B. 1991. Patterns of Marital
Change and Parent-Child Interaction. Journal of Marriage and the Family 53: 487498. Wilcox et al. 2005.
31 Eleanor Maccoby. 1998. Te Two Sexes: Growing Up Apart, Coming Together. Cambridge: Harvard University.
32 David Geary. 1998. Male, Female: Te Evolution of Human Sex Dierences. Washington, DC: American
Psychological Association. P. 104.
33 Wade Horn and Tom Sylvester. 2002. Father Facts. Gaithersburg, MD: National Fatherhood Initiative. P.
153. Popenoe. 1996. P. 145. Tomas G. Powers et al.1994. Compliance and Self-Assertion: Young Childrens
Responses to Mothers Versus Fathers. Developmental Psychology 30: 980989.
34 Pruett. 2000. Pp. 3031. Popenoe. 1996. Pp. 144145.
35 Geary. 1998. P. 142.
36 Anne Case et al. 2000. How Hungry is the Selsh Gene? Economic Journal 110: 781804. Wilcox et al. 2005.
37 Bruce Ellis. 2002. Of Fathers and Pheromones: Implications of Cohabitation for Daughters Pubertal Timing.
In A. Booth and A. Crouter (eds.) Just Living Together: Implications of Cohabitation on Families, Children, and
Social Policy. Mahwah, NY: Lawrence Erlbaum Associates.
38 McLanahan and Sandefur. 1994. p. 38, (emphasis supplied).
41 Michelle J. Budig and Paula England. 2001. Te Wage Penalty for Motherhood. American Sociological Review
66: 204225.
43 Waite and Gallagher. 2000.
44 Ibid.
45 Ibid.
46 Ibid.
47 Ibid.
48 Ibid.
49 Wilcox et al. 2005. Daniel N. Hawkins and Alan Booth. 2005. Unhappily Ever After: Eects of Long-Term
Low-Quality Marriages on Well-Being. Social Forces 84: 451472.
50 George Akerlof et al. Nock. 1998. Linda Waite and Maggie Gallagher. 2000. Te Case for Marriage. New York:
Doubleday.
51 Nock. 1998.
52 Waite and Gallagher. 2000.
SER 79
28
53 Nock. 1998.
54 Nock. 1998.
56 James Dabbs. 2000. Heroes, Rogues, and Lovers: Testosterone and Behavior. New York: McGraw-Hill.
57 Waite and Gallagher. 2000. p. 152.
58 Waite and Gallagher. P. 155.
59 Ibid.
60 Wilcox and Nock. 2006.
61 Ibid. Paul Amato and Stacy Rogers. 1999. Do Attitudes Toward Divorce Aect Marital Quality? Journal of
Family Issues 20: 6986.
62 Scott Stanley et al. 2004. Maybe I do: Interpersonal commitment and premarital or nonmarital cohabitation.
Journal of Family Issues 25: 496519. Wilcox et al. 2005.
63 Adam Tomas and Isabel Sawhill. 2005. For Love and Money? Te Impact of Family Structure on Family
Income. Te Future of Children 15: 5774.
64 Amato. 2005. p. 89.
65 Charles Murray. 2005. Te Hallmark of the Underclass. Wall Street Journal Sept. 29: A18.
66 http://www.ojp.usdoj.gov/bjs/glance/tables/exptyptab.htm
67 George A. Akerlof. 1998. Men Without Children. Te Economic Journal 108: 287309.
68 Robert J. Sampson. 1995. Unemployment and Imbalanced Sex Ratios: Race Specic Consequences for Family
Structure and Crime. In M.B. Tucker and C. Mitchell-Kernan (eds.). Te Decline in Marriage among African
Americans. New York: Russell Sage. P. 249.
69 Isabel V. Sawhill. 1999. Families at Risk. In H. Aaron and R. Reischauer, Setting National Priopities: the 2000
Election and Beyond. Washington: Brookings Institution.
70 David Schramm. 2003. Preliminary Estimates of the Economic Consequences of Divorce. Utah State University.
71 For family trends, see Timothy M. Smeeding, Daniel P. Moynihan, and Lee Rainwater. 2004. Te Challenge
of Family System Changes for Research and Policy. In D.P. Moynihan, T. M. Smeding, and L. Rainwater
(eds.), Te Future of the Family. New York: Russell Sage. For information on state spending around the globe,
see http://www.cia.gov/cia/publications/factbook/.
72 Popenoe. 1988. Wolfe. 1989.
73 Paul Amato and Alan Booth. 1997. A Generation at Risk. Cambridge: Harvard University Press.
74 Ibid.
75 Wilcox et al. 2005. Marquardt. 2005b. Between Two Worlds.
76 Wilcox et al. 2005. Sara McLanahan and Gary Qandefur. 1994. Growing Up With a Single Parent: What Hurts,
What Helps. Cambridge: Harvard University Press.
77 Ibid.
78 Norval Glenn. 1996. Values, Attitudes, and the State of American Marriages. In Promises to Keep, edited
by D. Popenoe, J. Elshtain, and D. Blankenhorn. Lanham, MD: Rowman and Littleeld. Frank Furstenberg.
2001. Te Fading Dream: Prospects for Marriage in the Inner City. In Problem of the Century, edited by E.
Anderson and D. Massey. New York: Russell Sage Foundation.
80 David Popenoe and Barbara Dafoe Whitehead. 2005. Te State of Our Unions. New Brunswick, NJ: National
Marriage Project.
81 Timothy M. Smeeding, Daniel P. Moynihan, and Lee Rainwater. 2004. Te Challenge of Family System
Changes for Research and Policy. In Te Future of the Family, edited by D. Moynihan, T. Smeeding, and L.
Rainwater . New York: Russell Sage Foundation. Popenoe and Whitehead. 2005. Wilcox et al. 2005.
SER 80
29
84 Daniel Lichter. Daniel T. Lichter, Deborah Roempke Graefe, and J. Brian Brown. 2003. Is Marriage a
Panacea? Union Formation Among Economically Disadvantaged Unwed Mothers, Social Problems 50: 6086.
Daniel T. Lichter, Christie D. Batson, and J. Brian Brown. 2004. Welfare Reform and Marriage Promotion:
Te Marital Expectations and Desires of Single and Cohabiting Mothers. Social Service Review 38: 225.
Lawrence L. Wu and Barbara Wolfe. 2001. Out of Wedlock: Causes and Consequences of Nonmarital Fertility. New
York: Russell Sage Foundation.
85 Steven L. Nock. 1998. Te Consequences of Premarital Fatherhood, American Sociological Review, 63:
250263.
86 Popenoe and Whitehead. 2005.
87 Larry Bumpass and Hsien-Hen Lu. 2000. Trends in Cohabitation and Implications for Childrens Family
Contexts in the U.S., Population Studies 54: 2941.
89 David Popenoe and Barbara Dafoe Whitehead. 2002. Should We Live Together? What Young Adults Need to Know
About Cohabitation Before Marriage: A Comprehensive Review of Recent Research. New Brunswick, NJ: National
Marriage Project.
90 Popenoe and Whitehead. 2002. Wilcox et al. 2005.
92 Patricia G. Schnitzer and Bernard G. Ewigman. 2005. Child Deaths Resulting from Inicted Injuries:
Household Risk Factors and Perpetrator Characteristics. Pediatrics 116: 687693.
93 Wendy Manning, Pamela Smock, Debarum Majumdar. 2004. Te Relative Stability of Cohabiting and
Marital Unions for Children. Population Research and Policy Review 23: 135159.
94 Steven Nock. 2001. Adavit to the Ontario Superior Court of Justice regarding Halpern et al. v. Canada.
Charlottesville, VA: University of Virginia Sociology Department. William Meezan and Jonathan Rauch. 2005.
Gay Marriage, Same-Sex Parenting, and Americas Children. Future of Children 15: 97115.
95 Esther Rothblum and Sondra Solomon. 2003. Civil Unions in the State of Vermont: A Report on the First Year.
University of Vermont Department of Psychology. David McWhirter and Andrew Mattison. 1984. Te Male
Couple. Prentice Hall. Andrew Sullivan. 1995. Virtually Normal. New York: Knopf, rst edition.
96 Judith Stacey. 1998. Gay and Lesbian Families: Queer Like Us. In All Our Families: New Policies for a New
Century, edited by M.A. Mason, A. Skolnick, and S.D. Sugarman. New York: Oxford University Press. Pp. 117,
128129.
97 Council of Europe. 2004. Recent Demographic Developments in Europe. Strasbourg: Council of Europe
Publishing. Daniel P. Moynihan, Timothy M. Smeeding, and Lee Rainwater. 2004. Te Future of the Family.
New York: Russell Sage Press.
98 Council of Europe. 2004. http://www.statcan.ca/Daily/English/050712/d050712a.htm. http://www.census.
gov/population/projections/MethTab1.xls.
99 Joseph Raz, Te Morality of Freedom (Oxford: Clarendon Press, 1986) 162.
100 http://www.americanvalues.org/pdfs/marriagemovement.pdf
101 Adam Carasso and C. Eugene Steuerle. 2005. Te Hefty Penalty on Marriage Facing Many Households with
Children. Future of Children 15: 157175.
102 Sara McLanahan, Elisabeth Donahue, and Ron Haskins. 2005. Introducing the Issue. Te Future of Children
15: 312.
SER 81
30
SIGNATORIES
[as of July 17, 2006]
Daniel Cere, Ph.D.
Director, Institute for the Study of Marriage,|
Law and Culture,
McGill University
Lloyd R. Cohen, PhD., J.D.
Professor of Law,
George Mason University School of Law
John Coverdale, J.D., Ph.D.
Professor of Law,
Seton Hall University School of Law
Frederick C. DeCoste, M.S.W., L.L.B., L.L.M.
Professor of Law,
University of Alberta Faculty of Law
Dwight Duncan, J.D.
Professor of Law,
Southern New England School of Law
David Eggebeen, Ph.D.
Associate Professor of Human Development
and Sociology,
Penn State University
Jean Bethke Elshtain, Ph.D.
Laura Spelman Rockefeller Professor of Social
and Political Ethics, University of Chicago
Michael O. Emerson, Ph.D.
Allyn R. and Gladys M. Cline Professor of
Sociology and Founding Director of the Center
on Race, Religion, and Urban Life,
Rice University
M. Sophia Aguirre, Ph.D.
Associate Professor of Economics,
Catholic University of America
Helen Alvare, J.D.
Associate Professor of Law,
Catholic University Columbus School of Law
Hadley Arkes, Ph.D.
Ney Professor of American Institutions
and Jurisprudence,
Amherst College
Herman Belz, Ph.D.
Professor of Constitutional History,
University of Maryland at College Park
Louis Bolce, Ph.D.
Associate Professor of Political Science,
Baruch College
Gerard Bradley, J.D.
Professor of Law, Notre Dame Law School
Patrick Brennan, M.A., J.D.
Professor of Law and John F. Scarpa Chair in
Catholic Legal Studies, Villanova University
School of Law
J. Budziszewski, Ph.D.
Professor of Government and Philosophy,
University of Texas at Austin
James W. Ceaser, Ph.D.
Professor of Politics, University of Virginia
SER 82
31
Gene C. Fant, Jr., Ph.D.
Chair, Department of English, Union University
Tomas E. Flanagan, Ph.D.
Professor of Political Science,
University of Calgary
David F. Forte, Ph.D., JD.
Charles R. Emrick Jr.Calfee, Halter & Griswold
Endowed Professor of Law,
Cleveland-Marshall College of Law
Elizabeth Fox-Geneovese, Ph.D.
Elonore Raoul Professor of the Humanities and
Professor of History, Emory University
Alfred J. Freddoso, Ph.D.
John and Jean Oesterle Professor
of Tomistic Studies,
University of Notre Dame
Jorge L.A. Garcia, Ph.D.
Professor of Philosophy, Boston College
Robert P. George, J.D., D.Phil.
McCormick Professor of Jurisprudence,
Princeton University
Mary Ann Glendon, J.D., L.L.M.
Learned Hand Professor of Law,
Harvard Law School
Alfonso Gomez-Lobo, Ph.D.
Ryan Family Professor of Metaphysics and
Moral Philosophy,
Georgetown University
Lino A. Graglia, L.L.B.
A. Dalton Cross Professor of Law,
Earl L. Grinols, Ph.D.
Distinguished Professor of Economics, Hankamer
School of Business, Baylor University
Anne Hendershott, Ph.D.
Professor of Sociology and Director
of Urban Studies,
University of San Diego
Joseph Horn, Ph.D.
Professor of Psychology,
Robert Jenson, Ph.D.
Senior Scholar for Research, Emeritus, Center for
Teological Inquiry, Princeton, N.J., and Professor
of Teology Emeritus,
St. Olaf College
Byron Johnson, Ph.D.
Professor of Sociology, Director, Center for
Religious Inquiry across the Disciplines,
Baylor University
Anthony M. Joseph, Ph.D.
Associate Professor of History
Eastern University
Leon R. Kass, M.D., Ph.D.
Addie Clark Harding Professor in the Committee
on Social Tought and the College,
University of Chicago
SER 83
32
Robert C. Koons, Ph.D.
Professor of Philosophy,
Peter Augustine Lawler, Ph.D.
Dana Professor and Chair of the Government
Department and International Studies,
Berry College
Wilfred M. McClay, Ph.D.
SunTrust Chair of Excellence in Humanities
and Professor of History,
University of Tennessee at Chattanooga
Paul R. McHugh, M.D.
University Distinguished Service Professor
of Psychiatry,
Johns Hopkins University School of Medicine
Ralph McInerny, Ph.D.
Professor of Philosophy and Michael P. Grace
Professor of Medieval Studies,
University of Notre Dame
Bruce M. Metzger, Ph.D.
George L. Collord Professor Emeritus of New
Testament Language and Literature,
Princeton Teological Seminary
Robert T. Miller, J.D., M.Phil.
Assistant Professor of Law,
Villanova University School of Law
Jennifer Roback Morse, Ph.D.
Senior Research Fellow in Economics,
Te Acton Institute for the Study of Religion
and Liberty
Russell K. Nieli, Ph.D.
Lecturer, Department of Politics,
Princeton University
Steven Nock, Ph.D.
Professor of Sociology and Director of the
Marriage Matters Project, University of Virginia
David Novak, M.H.L., Ph.D.
J. Richard and Dorothy Shi Professor of
Jewish Studies,
University of Toronto
Marvin Olasky, Ph.D.
Professor of Journalism,
Michael Pakaluk, Ph.D.
Associate Professor of Philosophy,
Clark University
Alexander R. Pruss, Ph.D.
Georgetown University
Jeremy Rabkin, Ph.D.
Professor of Government, Cornell University
Steven E. Rhoads, Ph.D.
Professor of Politics, University of Virginia
Daniel N. Robinson, Ph.D.
Philosophy Faculty, Oxford University
Distinguished Research Professor of Psychology,
Emeritus, Georgetown University
Michael A. Scaperlanda, J.D.
Professor of Law and Gene and Elaine Edwards
Family Chair in Law, Te University of
Oklahoma College of Law
SER 84
33
Roger Scruton, Ph.D.
Research Professor, Institute for the
Psychological Sciences
Gregory Sisk, J.D.
Professor of Law,
University of St. Tomas School of Law,
Minnesota
Katherine Shaw Spaht, J.D.
Jules F. and Frances L. Landry Professor of Law,
Louisiana State University Law Center
Richard J. Sperry, M.D., Ph.D.
Matheson Endowed Chair, Health Policy
and Management,
University of Utah
Max L. Stackhouse, Ph.D.
Rimmer and Ruth de Vries Professor of
Reformed Teology and Public Life, Princeton
Teological Seminary
Richard Stith, J.D., Ph.D.
Professor of Law,
Valparaiso University School of Law
James R. Stoner, Jr., Ph.D.
Louisiana State University
Seana Sugrue, L.L.B., L.L.M., D.C.L.
Associate Professor of Political Science,
Ave Maria University
Christopher O. Tollefsen, Ph.D.
University of South Carolina
Michael Uhlmann, J.D., Ph.D.
Research Professor in Politics and Policy,
Claremont Graduate University
Paul C. Vitz, Ph.D.
Senior Scholar, Institute for the
Psychological Sciences
Professor Emeritus of Psychology,
New York University
Lynn D. Wardle, J.D.
Bruce C. Hafen Professor of Law,
Brigham Young University
Amy Wax, J.D., M.D.
Robert Mundheim Professor of Law,
University of Pennsylvania Law School
Robert Louis Wilken, Ph.D.
William R. Keenan, Jr. Professor of History,
University of Virginia
Richard G. Wilkins, J.D.
Robert W. Barker Professor of Law
Brigham Young University
James Q. Wilson, Ph.D.
Ronald Reagan Professor of Public Policy,
Pepperdine University
Christopher Wolfe, Ph.D.
Marquette University
Peter Wood, Ph.D.
Provost and Professor of Anthropology
and the Humanities,
Te Kings College
SER 85
34
About THE WITHERSPOON INSTITUTE
Te Witherspoon Institute works to enhance public understanding of the political, moral, and philosophical
principles of free and democratic societies. It also promotes the application of these principles to contem-
porary problems.
Te Institute is named for John Witherspoon, a leading member of the Continental Congress, a signer of
the Declaration of Independence, the sixth president of Princeton University, and a mentor to James Madi-
son. As important as these and his other notable accomplishments are, however, it is Witherspoons com-
mitment to liberal education and his recognition of the dignity of human freedom, whether it be personal,
political, or religious, that inspire the Institutes name.
In furtherance of its educational mission, the Witherspoon Institute supports a variety of scholarly activi-
ties. It sponsors research and teaching by means of a fellowship program; it sponsors conferences, lectures,
and colloquia; and it encourages and assists scholarly collaboration among individuals sharing the Institutes
interest in the foundations of a free society. Te Witherspoon Institute also serves as a resource for the
media and other organizations seeking comment on matters of concern to the Institute and its associated
scholars.

BOARD OF TRUSTEES
Stephen Whelan, Esq., Chairman
Luis Tellez, President
Mark OBrien, Vice-President
Michael Fragoso, M.D., Treasurer
John Metzger, Esq., Secretary
Michael Crofton, Trustee
Deborah Garwood, Trustee
Roger Naill, Trustee
Edward Smith, Trustee
Mark Smith, Trustee
Herbert W. Vaughan, Trustee Emeritus
Eugene Zurlo, Trustee
For more information about the work of the Witherspoon Institute, please visit www.winst.org, or call (609)
688-8779.
SER 86
A Call to the Nation
from Family and Legal Scholars
Marriage and the Law
A Statement of Principles
Institute for Marriage and Public Policy
SER 87
This Call to the Nation stems in part from several consultations on marriage and
the law held at the Harvard Law School in 2004 and 2005. For their leadership and
hard work, the sponsors are grateful to Mary Ann Glendon of the Harvard Law
School and the other members of the Council on Family Law, and to the many
family and legal scholars across the country who contributed to the Statement.
The sponsors are also grateful to the Achelis and Bodman Foundations, the William
H. Donner Foundation, the JM Foundation, the Maclellan Foundation, Arthur and
Joann Rasmussen, and the William E. Simon Foundation for their generous financial
support. The research, editorial, and administrative contributions of Joshua Baker
and Dr. Bonnie Robbins are also deeply appreciated.
On the cover: The Curtain, 2005 by Brian
Kershisnik. 2005, Brian Kershisnik. Used with
permission. For more information about Brian
Kershisnik and his work, please visit:
http://www.kershisnik.com.
Layout by Josephine Tramontano.
2006, Institute for American Values. No repro-
duction of the materials contained herein is per-
mitted without the written permission of the
Institute for American Values.
ISBN: 1-931764-11-5
ISBN-13: 978-1-931764-11-7
For more information or additional copies, con-
tact:
New York, NY 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
Web: www.americanvalues.org
SER 88
Table of Contents
Executive Summary.....................................................................................................
Why We Come Together..................................................................................
The Failing Family Diversity Model..............................................................
The Emerging Consensus on Marriage............................................................
The Failure of Family Law................................................................................
Whats Missing? Dependency, Generativity, and Responsibility....................
Evidence of Troubling Trends in Family Law..................................................
Why are Marriage and Family Law Headed in the Wrong Direction?.............
Can We Go Back?.............................................................................................
Is There a Better Way? Toward a New Working Model in Family Law...........
How Does Family Law Matter?.........................................................................
Principles of Pro-Marriage Legal Reform: Six Criteria.....................................
Conclusion........................................................................................................
Appendix: Strengthening Marriage in Family Law: Proposals...................................
Endnotes......................................................................................................................
Signatories...................................................................................................................
4
6
8
12
12
14
16
19
21
22
25
27
28
29
31
39
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
X.
SER 89
H
OW SHOULD family law treat marriage? In this report, a group of family schol-
ars and legal scholars come together to acknowledge some key propositions
about marriage and family law in the United States.
Marriage is a key social institution, with profound material, emotional, and social
consequences for children, adults, and society. As marriage weakens, fewer men are
committed to family life, more women are saddled with the unfair burdens of par-
enting alone, and childrens ties to both their parents (especially fathers) are
weakened. Communities face increasing social and economic problems.
The most important benefits of marriage are not the sole creation of law. Social science
evidence strongly suggests the prime way that marriage as a legal institution protects
children is by increasing the likelihood that children will be raised by their mother
and father in lasting, loving (or at least reasonably harmonious) family unions.
Marriage in any important sense is not a creation of the State, not a mere creature
of statute.
For marriage to create these benefits, it must be more than a legal construct. Creating
a marriage culture that actually does protect children requires the combined
resources of civil societyfamilies, faith communities, schools, and neighbor-
hoodspublic policy, and the law in order to channel men and women towards
loving, lasting marital unions. In recent years more Americans, and more family
scholars, are taking marriage seriously.
Unfortunately, the recent trend in family law as a discipline and practice has been
just the opposite. Family law as a discipline has increasingly tended to commit two
serious errors with regard to marriage: (a) to reduce marriage to a creature of statute,
a set of legal benefits created by the law, and (b) to imagine marriage as just one of
many equally valid lifestyles. This model of marriage is based on demonstrably false
and therefore destructive premises. Adopting it in family law as a practice or as an
academic discipline will likely make it harder for civil society in the United States to
strengthen marriage as a social institution.
As scholars and as citizens, we recognize a shared moral commitment to the basic
human dignity of all our fellow citizens, black or white, straight or gay, married or
Page 4
Marriage and the Law
A Statement of Principles
Executive Summary
SER 90
unmarried, religious and non-religious, as well as a moral duty to care about the
well-being of children in all family forms. But sympathy and fairness cannot blind
us to the importance of the basic sexual facts that give rise to marriage in virtually
every known society: The vast majority of human children are created through acts
of passion between men and women. Connecting children to their mother and father
requires a social and legal institution called marriage with sufficient power, weight,
and social support to influence the erotic behavior of young men and women.
We do not all agree on individual issues, from the best way to reform unilateral
divorce to whether and how the law should be altered to benefit same-sex couples.
We do agree that the conceptual models of marriage used by many advocates are
inadequate and thus contribute to the erosion of a marriage culture in the United
States. We seek to work together across the divisive issue of gay marriage to affirm
the basic importance of marriage to our children and to our society. We call on all
the makers of family lawlegislators, judges, the family law bar, and legal scholars
who create the climate in which other players operateto develop a deeper under-
standing of and commitment to marriage as a social institution.
A prime goal of marriage and family law should be to identify new ways to support
marriage as a social institution, so that each year more children are protected by the
loving marital unions of their mother and father.
Page 5
SER 91
I. Why We Come Together
[Marriage] is something more than a mere contract.... It is an
institution, in the maintenance of which in its purity the public is
deeply interested, for it is the foundation of the family and of society,
without which there would be neither civilization nor progress.
Justice Stephen Johnson Field, Maynard v. Hill, 125 U.S. 190, 210-
11 (1888)
What if statements like these, which to modern ears sometimes sound like mere plat-
itudes, turn out to be true? What if marriage really is an essential core institution of
American society, a close kin in importance to private property, free speech and free
enterprise, public education, equal protection of the law, and a democratic form of
government?
How then should law and society treat marriage?
We are legal scholars, family scholars, lawyers, and reformers who come together to
affirm a large and serious vision of the significance of marriage in American society
and in American law.
Many of us have devoted substantial parts of our professional and public lives to
addressing the consequences of family fragmentation and fatherlessness for children,
for adults, and for the larger community. We are deeply committed to the moral prin-
ciple of equal regard between men and women, and of marriage reforms that are
consistent with the equal dignity of both genders. We are especially concerned with
protecting adults and children threatened by family violence, and with reducing
destructive conflict between parents. We gladly acknowledge the importance of
additional social and legal institutions for protecting children, such as adoption, and
the obligations of a good society to care about children in all family forms, traditional
or non-traditional. We come together to affirm seven great truths about marriage and
the law:
Marriage and family law is fundamentally oriented towards creating and
protecting the next generation. Marriage serves many social purposes,
including meeting adult needs for love and intimacy. The classic goods and goals
of marriage include love, fidelity, sexual satisfaction, and mutual support, as well
as the creation and care of children.
1
Marriage is an important institution for
adults, satisfying the yearning for companionship and creating a social ecology
that helps men and women bridge the sex divide. Equality, intimacy, and benefits
for adults are all important. But these adult needs cannot displace marriages
central role in creating children who are connected to and loved by the mother
and father who made them.
Page 6
1.
SER 92
The primary way that marriage protects children is by increasing the likeli-
hood that a child will know and be known by, love and be loved by, his
or her mother and father in a single family union. The primary benefits of
marriage for children, therefore, are not a set of legal incidents that the law can
confer upon other family structures by court order or legislative decree. The law
of marriage protects children to the extent that it succeeds in getting men and
women to have and raise their children together. Because women are connected
to their children naturally, through the process of gestation and birth, marriage is
especially important for effectively connecting children to fathers, not only satis-
fying more childrens longing for a loving father, but creating more equal distri-
bution of parenting burdens between men and women.
Marriage is first and foremost a social institution, created and sustained by
civil society. Law sometimes creates institutions (the corporation is a prime mod-
ern example). But sometimes the law recognizes an institution that it does not and
cannot meaningfully create. No laws, and no set of lawyers, legislators, or judges,
can summon a social institution like marriage into being merely by legal fiat.
Marriage and family therefore can never be reduced to a legal construct, a mere
creature of the state. Faith communities play a particularly powerful role in sus-
taining marriage as a social institution. The attempt to cut off civil marriage from
religious marriageto sever our understanding of the law of marriage from the
traditions, norms, images, and aspirations of civil society that give marriage real
power and meaningis in itself destructive to marriage as a social institution.
The laws understanding of marriage is powerful. Legal meanings have
unusually powerful social impacts. People who care about the common good,
therefore, need to take seriously the potential consequences of dramatic legal
changes in marriage and family law.
2
Neutrality is rarely an option.
3
When
government intervenes in important social debates, from no-fault divorce to
same-sex marriage, the law privileges its own viewpoint and has the power to
affect the culture of marriage as a whole, often in ways few intend or foresee.
Marriage is an irreplaceable social good. Marriage is more than a values issue.
Irreplaceable goodsequality of opportunity, the prevention of poverty, the well-
being of children, the equal dignity of men and women, and the transmission of
American civilization into the futureare at stake in the marriage debate. The
well-being of society and children depends on the health of our marriage culture.
High rates of divorce, unmarried childbearing, as well as violent or high-
conflict marriages, hurt children. An abundance of social science evidence
shows that all three of these forms of family breakdown hurt children. One key
purpose of marriage is to prevent the damage that occurs to children when their
mothers and fathers fail to build decent, average, good-enough, lasting, loving
unions.
Page 7
2.
3.
4.
5.
6.
SER 93
A good society cares about the suffering of children. Children are
resilient and can become functioning, loving, successful adults in a number
of family forms. But the resilience of children is no good excuse for moral
callousness on the part of parents or society. A good society does not ignore
conditions that create unnecessary suffering for children on the grounds that
children can overcome difficulties. In a good society, adults seek to shield
children from damaging threats, pain, and suffering, even when doing so
requires assuming greater burdens and making significant sacrifices for the
adults themselves.
Out of these seven truths comes our shared commitment:
A major goal of marriage and family law should be supporting civil
societys efforts to strengthen marriage, so that more children are
raised by their own married mother and father in loving, lasting
unions.
4
II. The Failing Family Diversity Model
M
ANY RESPECTED and influential voices in family law, as we lay out below,
reject the idea that law and society should support and affirm marriage,
arguing instead for a family diversity model in family law.
What is the family diversity model? It is a normative moral commitment to the idea
that no family form is superior to any other family form. The family diversity model
transforms family fragmentation from a social problem into a sign of progress. Its
advocates say that neither law nor society should prefer any one kind of family struc-
ture over any others. In the family diversity model, marriage is not the preferred con-
text for childraising, but one of many possible, equally approved family forms adults
ought to choose freely, without social support or censure.
Professor Katherine Bartlett, for example, one of the reporters (or drafters) of the
American Law Institutes Principles of the Law of Family Dissolution, distills the moral
and social argument made by family diversity advocates in a recent essay entitled
Saving the Family from the Reformers.
5
Her work in family law, she says, is driven
by the value I place on family diversity and on the freedom of individuals to choose
from a variety of family forms....
6
But what happens to children when adults claim the right to choose for themselves
from a variety of family forms? Two generations ago, Americans advocating the
family diversity model as a moral ideal may not have known the consequences of
increasing family fragmentation. But forty years of social experimentation has
demonstrated conclusively: the family diversity experiment has failed.
Page 8
7.
8.
SER 94
This is not merely our personal view. An abundance of objective social science evi-
dence now shows that marriage is not just one of many equally protective family
forms. When marriages fail, or fail to take place, children, women, men, and society
suffer.
When men and women fail to get and stay married, children are placed at risk.
Children raised outside of intact marriages have higher rates of poverty, mental ill-
ness, teen suicide, conduct disorders, infant mortality, phys-
ical illness, juvenile delinquency, and adult criminality. They
are more likely to drop out of school, be held back a grade,
and launch into early and promiscuous sexual activity, lead-
ing to higher rates of sexually transmitted diseases and early,
unwed parenthood. After a broad and vigorous scientific
debate we now know that, as the nonpartisan child-research
organization Child Trends recently put it, Research clearly
demonstrates that family structure matters for children. Of the family structures that
have been well-studied:
7
the family structure that helps children the most is a family
headed by two biological parents in a low-conflict marriage. Children in single-
parent families, children born to unmarried mothers, and children in stepfamilies or
cohabiting relationships face higher risks of poor outcomes.... There is thus value for
children in promoting strong, stable marriages between biological parents.
8
The retreat from marriage hurts women, as well as children. As marriage
weakens, the practical result is not greater egalitarianism, but widespread gender
inequality, as women disproportionately shoulder the costs and burdens of raising
children alone.
9
Divorce or legal separation can provide important protections for
women, as well.
10
Adequate child support and other appropriate supports for single
mothers are important. But neither a government check nor a child support check
offers children or their mothers the same benefits as an intact, loving family.
High rates of family fragmentation contribute to a broad array of social
problems for communities and taxpayers, including increasing rates of poverty,
crime, juvenile delinquency, substance abuse, teen pregnancy, and other social
problems.
11
We are concerned first about the suffering and risk to children whose
parents part. But because marriage is an important generator of human and social
capital, we are also concerned with the ways that adults as well as whole commu-
nities suffer when a marriage culture frays.
The decline of marriage creates serious inequalities of opportunity, affecting
poor children and racial minorities disproportionately. Marriage is a wealth-building
institution, a profound source of social and human capital.
12
Today many American
children, through no fault of their own, are deprived of the significant social, edu-
cational, economic, spiritual, emotional, and psychological advantages of functioning,
intact married families.
Page 9
The family diversity
experiment has failed.
This is not merely our
personal view.
SER 95
A growing acceptance of fatherlessness as normal promotes a dehumanized
vision of men and masculinity. Children long for their fathers as well as their
mothers. This longing emerges so early, and for many children with such intensity,
that it is hard to dismiss as a mere social construct. Men also need and want a
vision of masculinity that affirms the indispensable role of good family men in
protecting, providing for, and nurturing children, as well as in caring for and about
their childrens mother. A culture that no longer expects most men to become reli-
able fathers and husbands promotes a degraded vision of masculinity to men and
about men, one deeply at odds with the human dignity of men and women and with
the needs of children.
The marriage gap promotes racial and class inequities in America. In America
today, the risks and burdens of fatherlessness and family fragmentation are not evenly
distributed across the spectrum of class and race, but are disproportionately experi-
enced by our least-advantaged children and communities. In a good society, the vast
majority of children will receive the love and care of their own mother and father,
regardless of race, income, or social class. Discrimination, unequal employment
opportunities, gender mistrust, and any other cultural, social, or economic barriers
to strengthening marriage in particular ethnic or socioeconomic communities are
important social problems to be remedied, not diversities to be celebrated.
When men and women fail to build decent marriages in which to rear their
children together, children suffer. Even when children are not permanently dam-
aged in ways that social scientists are equipped to measure, most children find the
separation of their mother and father from each other to be extremely painful, and
many find it has lasting consequences for their own experience of family and per-
sonal identity.
13
(High conflict and violent marriages are also extremely damaging to
children.) Thus a marriage-supportive culture must find ways to reduce not only
divorce and unmarried childbearing, but also destructive conflict and family violence.
Respect for Pluralism as a Moral Value
Let us be clear on what we mean (and do not mean) by this critique of family
diversity. Respect for pluralism as a moral value is widely shared in America. It has
multiple and overlapping meanings reflecting (a) the deep value Americans place on
personal liberty; (b) our commitment to democratic dialogue that finds value in lis-
tening to others perspectives even where we disagree; (c) the right of minorities to
equal protection of the laws; and (d) compassion for those whose disadvantaged cir-
cumstances require special accommodation in order to participate fully in American
life.
This rich array of meanings is not the subject of our criticism here. We agree with
family diversity advocates that all parents struggling to raise responsible children
should be respected for their efforts. We agree with family diversity advocates that
Page 10
SER 96
single mothers and their children need special help from families, neighbors, and the
wider community to help overcome the difficulties they face when men fail to
become responsible fathers.
But when family diversity comes to mean that society must equally affirm all the
choices adults make about family forms, regardless of how they affect children or
others, then we must respectfully, but forcefully, disagree. Breaking up a family,
for example, is not an immutable characteristic, like race or
gender; it is a choice made by at least one adult. A call to
reflection about when and under what circumstances that
choice is appropriate is not a threat to equality but part
and parcel of human dignity. Adults who make choices
that affect their children (as well as themselves and others)
have a right to more than happy talk that uncritically sup-
ports their choice, whatever they choose to do. They, like
all of us, deserve to live in a society which engages in compassionate, morally seri-
ous, and intellectually credible discussion about when and how adults choice to
divorce or have children outside of marriage can hurt children, men and women,
and communities.
Family diversity advocates sometimes imply that we may not speak about the better
performance of some family forms than others for children because hearing that truth
may make some of us uncomfortable with choices we have made. When family
diversity moves from a principle of compassion for those in difficult circumstances,
to positioning itself as a core moral ideal for family life, it fundamentally asks law
and society to take the side of unencumbered adult individualism over the needs of
our own children. Compassion for adult feelings cannot trump the needs of children
or the demands of truth.
The good society reaches out to children in all family forms. A good society protects
children from the consequences of parental irresponsibility and seeks positive means
(including adoption) to provide for children whose biological parents fail them. But
a good society equally never seeks deliberately to create conditions that deprive a
child of his or her natural mother and father, or licenses adult irresponsibility towards
the children men and women make.
We recognize that one or both adults can conduct their marriages so badly that children
are better off if parents part. We recognize, too, that human beings are resilient, that
children raised outside of intact marriages sometimes can and do surmount the
difficulties and grow to become loving, functional, and successful adults. But the
alleged resilience of children is no good excuse for moral callousness on the part of
parents or society. Adults in a good society have and feel a powerful moral obligation
to protect their own children from damaging suffering and risk, even when doing so
requires assuming additional risks, deprivations, and burdens themselves.
Page 11
Compassion for adult
feelings cannot trump the
needs of children or the
demands of truth.
SER 97
When it comes to marriage, we are hopeful that truth and compassion can both pre-
vail. We can respect all families struggling to raise decent children, even while
acknowledging and striving towards an ideal in which each year more children are
born to and raised by their own mother and father joined in a lasting, loving marital
union, one that is premised in the first instance on innate human dignity, one that is
safe from family violence and marked by equal regard between husbands and wives.
III. The Emerging Consensus on Marriage
I
N THE LAST DECADE we have witnessed many promising signs of a cultural renew-
al around marriage. Americans have responded to the growing awareness of the
social problems created by rising rates of family fragmentation in a characteristi-
cally American way: by social learning, reform, and renewal.
These hopeful signs include: a broad consensus of scholars across ideological lines
acknowledging the important role marriage plays in protecting the well-being of
children;
14
modest declines in divorce over the last twenty years;
15
increasing disap-
proval of divorce among young people (many of whom are intimately familiar with
its effects on children);
16
an increase in the number of African American children
living with married parents;
17
an increase in the number of children living with both
biological parents;
18
and an increased commitment among married couples to per-
manence (and greater happiness) than found among married people 20 years ago.
19
We recognize that many factors besides attitudes and values affect family formation
behavior. We know these hopeful signs for marriage renewal are only preliminary and
may prove fleeting. We know that other indicators suggest that the marriage crisis is far
from over.
20
But as Americans have increasingly recognized the importance of lasting
marriages, more Americans are also making renewed efforts to strengthen marriage.
To succeed in this great task, all the custodians of our marriage traditionsfamilies,
faith communities, marriage experts, educators, therapists, and other parts of civil
societymust work together to transmit a deeper, richer, and more effective marriage
culture to the next generation. Among these important custodians of our marriage
tradition we include the makers of family law: judges, legislators, the family law bar,
and the academy.
IV. The Failure of Family Law
I
N THE MIDST of these hopeful signs of social renewal, we call attention to an
increasingly disturbing trend: As scholars in other disciplines come to shed
increasing light on the importance of marriage as a key social institution, family
law as a discipline is moving in the opposite direction, embracing family diversity as
Page 12
SER 98
the moral ideal which should undergird family law. Even as American society in gen-
eral begins to refocus on how marriage can better serve the needs of children, much
of family law as a discipline and practice remains preoccupied with the sexual choices
and rights of adults.
This embrace of family diversity as our core social and legal ideal make it increasingly
likely that family law, as a practice, will make it harder for Americans to do the
critical task of protecting children by strengthening marriage.
We seek in this statement to investigate the reasons for this
failure of family law, to analyze why so few of the legal cus-
todians of marriage have integrated new scholarly evidence
on the importance of marriage into their work, and to forge
a new consensus about the basic conceptual principles that
underlie marriage and family law.
We do so recognizing that basic principles are but one tool used in evaluating
specific family laws and possible family law reforms. We do not mean to foreclose
important debates on how family law can best address unilateral divorce, encour-
age marriage, support ties between parents and children, reduce domestic abuse,
or address the new issue of same-sex unions. We do not all necessarily agree on
the specifics of various proposed legal reforms. But we do agree that the concep-
tual framework being promoted by the official custodians of family lawin the
academy, the bar, and in many recent judicial decisionsis an impoverished one
that needs to be changed if the law is going to support families and children,
rather than undermine societys ongoing efforts to help children and strengthen
marriage.
We gather together in particular to call attention to two large and important ideas:
Marriage is fundamentally a social institution, shaped by civil society.
Marriage cannot be created by government. Marriage is not merely a legal con-
struct, and the authors of family law go wrong when they speak, act, and legis-
late as if marriage were a creature of the state, no more than the sum of its legal
incidents. Marriage is in the first instance a moral bond between two individuals.
As a social institution, it is profoundly a product of civil society, rooted in and
responding to persistent facets of human biology, in which government and law
play a crucial, but only a supporting role.
Our social safety net is primarily social. Marriages existence in anything but a
nominal sense depends on the combined efforts of families, friends, and faith
communities, and on the efforts of the custodians of the marriage tradition, old
and new: clergy, therapists, counselors, and family scholars. One cannot create a
social institution like marriage simply by passing laws or ordering it into being.
Page 13
Much of family law
remains preoccupied with the
sexual choices and
rights of adults.
1.
SER 99
Yet the mere fact that the law alone cannot create marriage does not make family
law irrelevant or negligible. Good family law does play a role in helping civil
society to sustain marriage. Bad law can surely undermine these efforts. Getting
the law wrong has real consequences for marriage (as in other areas of civil soci-
ety or the economy that are touched by law). In order to do their job properly,
makers of family law must become more knowledgeable about and respectful
toward the underlying social institution that they are attempting to regulate. The
law must view itself as a collaborative player rather than a dominant hegemon in
marriage and family life.
In family law, the interests of children should come first. Why? Partly
because children are vulnerable dependents whose protection by government
and third-parties should trump adult agendas of right or left.
But childrens interests come first in family law for another key reason as well.
Family, as a social institution, is in a basic sense profoundly about (though not
limited to) children. Families are the means through which we make the next
generation, transmitting our society to the future. Marriage transforms biologically
unrelated adults into kin, jointly committed to caring for any children they have
(or adopt). If the law is to fulfill its crucial role in helping sustain this social insti-
tution, the custodians of marriage and family law (judges, scholars, lawyers, and
legislators) cannot lose sight of the one crucial and irreplaceable social function
of marriage and family: encouraging men and women to come together to give
themselves to the next generation.
V. Whats Missing? Dependency, Generativity, and
Responsibility
I
N RECENT YEARS, the story of the law has changed in ways profoundly destructive
to the interests of children, of women who care for them, and of men who wish
to be dependable family men. (For examples, see Evidence of Troubling Trends
in Family Law, Section VI, infra.) Although there are dissenters (and arguably an
increasing number),
21
the story of marriage currently embedded in our family law is
largely of two rights-bearing individuals seeking personal satisfaction and making
private choices.
Whats missing from this current legal story of marriage? Three large human realities:
dependency, generativity, and responsibility.
Dependency
The problem of dependency (for both the old and young) is particularly acute today.
Changes in demography and social roles mean that there are large increases in
Page 14
2.
SER 100
dependency needs at precisely the same time that supportive institutions (such as
marriage) are weakening. An aging population (an increase in the proportion of
older people to younger people in society), in particular, threatens to challenge the
capacity of other institutionsthe neighborhood, faith communities, and the state
to support dependency.
Re-imagining family law as the story of rights-bearing individuals making choices
removes from family law the very core of family life, with
the obligations to connection and caring that arise from
relatedness, not merely personal choice. Not all familial obli-
gations are also legal ones. But legal discourse that directly
or indirectly seeks to imagine the family as a series of close
personal relationships collapses the distinction between
elective affinities and family obligations, between friends
and family, between those we help because we want to, and
those we want to help because they belong to us.
22
Generativity
When men and women enter sexual unions, one potential result is children. Crafting
marriage and family as the story of adult rights to diverse choices radically subordinates
the well-being of children to the needs, desires, and tastes of rights-bearing adults.
23
Marriage emerged in virtually every known society to wrestle with the problematic of
fatherhood, the biologically based sexual asymmetry in which men and women jointly
have sex, but women alone bear children. The process of gestation and birth ensures
that at a minimum, the mother is around when the baby is born. But no identical bio-
logical imperative connects the father to his child, or to the mother of his children.
Marriage emerges out of the childs need for a father and the mothers need for a mate.
It emerges, too, out of a deep-seated longing among men to uncover a masculine role
in the drama of creating and nurturing human life, to become the kind of husband
that women want and the kind of father that children look up to. Marriage thus helps
create a greater equality between parents than nature alone can sustain.
Responsibility
As family law moves towards embracing a family diversity ethic as its core goal, it
begins to tell a story about marriage and family life that is radically divorced not only
from lived experience, but also from the aspirations of young people. With the
advent of unilateral divorce, for example, the story the law tells about marriage is
this: Marriage is the temporary union of two independent adults who stay together
for their own private purposes, so long as it happens to suit the interests of both
adults. The aspiration to marriage, on the other hand, includes a desire to become
the kind of human being who can be counted on by ones spouse and by ones
Page 15
One cannot create a social
institution like marriage
simply by passing laws or
ordering it into being.
SER 101
children. A family law based on a thin ethic of justice, in which unisex rights-
bearing individuals make choices about lifestyles, cannot serve the fullness of adult
capacities or desires, much less the needs of children whose consent is not asked or
required. Of course, such a trend in legal thinking is not universal. As the conven-
tional wisdom in family law increasingly embraces family diversity and adult sexual
liberty as core goals, many family law scholars across the ideological spectrum are
demonstrating increasing unease with the consequences for children and society,
and a renewed search for a better model for marriage and family law.
24
VI. Evidence of Troubling Trends in Family Law
Exhibit A: The 70s Divorce Revolution
In the 1970s and early 1980s, nearly every state in the union moved towards some
form of unilateral no-fault divorce, and they did so with very little public debate, or
attention to the consequences for children. At the 1970 meeting of the National
Conference of Commissioners on Uniform State Laws, in an extended discussion of
divorce law, the commissioners quickly batted aside the idea that childrens interests
might differ from adults desires:
At this point, the Chairman consulted an expert Reporter...who
added summarily: [W]hile the studies are fairly recent and there
arent a great many of them, what studies there are which have
followed up children of divorce suggest that children of divorced
parents make out better on every relevant criterion...than do the
children of undivorced parents who label their parents marriages as
unhappy.
25
With the passage of time, more experience, and better social science evidence, these
sanguine views of divorce as generally beneficial to children (whenever one partner
wants out) have been replaced by more realistic views, supported by more exten-
sive scientific evidence, that acknowledge that when it comes to divorce the desires
of adults and the interests of children often diverge.
26
What an adult chooses is not
necessarily best for children, especially in the absence of strong social norms guid-
ing parents understanding of the consequences, advising when it is okay to
choose to divorce.
27
As William A. Galston has pointed out:
The benefits of no-fault divorce were immediate, especially for men
seeking an easier exit from long-established marriages. An under-
standing of the costs emerged more slowly, through painful experience
and the gradual accretion of research.
28
Page 16
SER 102
Yet many current debates in marriage and family law disturbingly recapitulate this
easy equation of the interests and desires of adults and the needs of children. The
assumption that all family forms adults may choose are equally protective of children
has proven dangerously false. The same mistake ought not be repeated in contem-
porary family law debates.
Exhibit B: ALI and Family Law Scholarship
The assumption that marriage is just one of many equally affirmed family forms now
permeates much family law scholarship.
29
In the summer of 2000, writing in Family Law Quarterly, distinguished family law
scholar Harry D. Krause put it this way: A pragmatic, rational approach would ask
what social functions of a particular association justify extending what social bene-
fits and privileges. Marriage, qua marriage, would not be the one event that brings
into play a whole panoply of legal consequences.
30
Speaking about tax laws that
treat married and cohabiting couples differently, he concludes: The rational answer
seems clear: Married and unmarried couples who are in the same factual positions
should be treated alike.
31
Similarly, in the Principles of the Law of Family Dissolution, the American Law
Institute declares that our society has a fundamental commitment to family diversity.
32
People live in a variety of ways. The way they live is what gives rise to legal and
moral obligations. The ALIs report also argues that the fact that a marriage has or
has not taken place should have minimal, if any, legal or social implications. In the
ALI reports view, a legal marriage vow, a public pledge by the couple to lifelong
mutual care, sexual fidelity, financial support, and a shared family life, gives rise to
no unique expectations or obligations fundamental to the principle of social justice
in family life:
[T]he absence of formal marriage may have little or no bearing on the
character of the parties domestic relationship and on the equitable
considerations that underlie claims between lawful spouses at the
dissolution of a marriage.
33
This view of marriage as a formal relationship, rather than a social institution that
changes people and their relationships, leads the ALI to advocate for treating cohab-
iting couples, at least in some instances, as if they were married.
34
Exhibit C: Trends in Canadian and European LawEquating Marriage
and Cohabitation
Several European nations and Canada, as well as Australia and New Zealand, have
recently adopted policies whereby cohabiting couples (de facto couples) are given
Page 17
SER 103
the same (or similar) legal treatment as married couples simply by virtue of having
lived together for a specified period of time.
35
Unlike earlier common law marriages,
such spousal status does not depend upon a couple having held themselves out as
a married couple, or even having made a private marriage commitment, but instead
arises simply out of the extended cohabitation.
36
Blurring the legal boundaries
between the committed and less committed relations makes it harder for the com-
munity to recognize who is married, and for married couples to signal to one another
their own commitment.
37
Exhibit D: The Legal Debate about Marriage and Same-Sex Unions
We do not all agree substantively on the issue of whether the legal definition of
marriage should be altered to include same-gender couples. Some of us are inclined
to favor it, others to oppose it. Some of us are uncertain and concerned about how
to weigh or balance the interests involved, from the well-being of children to the
legitimate needs of gay and lesbian people.
We do agree, however, that the basic understanding of marriage underlying much of
the current same-sex marriage discourse is seriously flawed, reflecting all the worst
trends in marriage and family law generally. It is adult-centric, turning on the rights of
adults to make choices. It does not take institutional effects of law seriously, failing to
treat with intellectual seriousness any potential consequences that changing the basic
legal definition of marriage may have for the children of society. In many cases it
directly or indirectly seeks to disconnect marriage from its historic connection to pro-
creation. Sadly, an attack on the idea that family structure matters now forms a part of
some advocates case for same-sex marriage in both the courts and the public square.
38
We invite advocates of same-sex marriage who genuinely believe that two parents are
better than one to develop public arguments for same-sex marriage that do not dispar-
age connecting mothers and fathers to their children as an important social norm.
39
In the very first U.S. court decision favoring same-sex marriage (Baehr v. Lewin), for
example, the high court of Hawaii declared, This court construes marriage as a part-
nership to which both partners bring their financial resources as well as their individ-
ual energies and efforts. Baehr v. Lewin, 852 P.2d 44, 58 (Haw. 1993). The highest
judicial authority in the state thus produced a definition of marriage which, as one
legal scholar has noticed, is virtually indistinguishable from the definition one might
accord a business partnership. . . . Indeed, it could embrace nearly all forms of col-
laborative enterprise.
40
The Hawaii Supreme Court is not, of course, alone. Numerous
legal scholars in recent times have advanced or assumed this view of marriage.
41
Courts that have moved to same-sex marriage display a distressing tendency to first
reduce marriage to a legal construct, unrelated to any natural, biological, or sexual
realities, such as the generation of children or the gender asymmetry in parenting.
In the Massachusetts same-sex marriage ruling, Goodridge v. Department of Public
Page 18
SER 104
Health, the Court began its constitutional analysis with the statement, We begin by
considering the nature of civil marriage itself. Simply put, the government creates
civil marriage.
42
Similarly a recent federal trial court opinion striking down
Nebraskas state marriage amendment described marriage baldly as a creature of
statute.
43
Courts have by no means uniformly accepted this relatively novel view of marriage,
or rejected the importance of procreation and family struc-
ture to the intrinsic purposes of marriage.
44
Indeed, supreme
court decisions in Washington and New York demonstrate
renewed respect for this understanding.
45
To frame the same-gender marriage issue as exclusively
about gay and lesbian civil rights fails to take seriously the
issues at stake. Many of us believe that same-sex marriage
may offer important potential goods, from increasing stability
for children raised by parents in same-sex partnerships, to
greater social attention toward the legitimate needs of gay and lesbian people. But
we recognize that the question of whether and how altering the legal meaning of
marriage from the union of male and female to a unisex union of any two persons
will change the meaning of marriage itself is a critical question, which serious people
must take seriously, and about which Americans of good will may and do disagree.
VII. Why are Marriage and Family Law Headed in the
Wrong Direction?
A
S AMERICA IN GENERAL and other scholarly and intellectual disciplines in partic-
ular have moved towards a deeper understanding of and support for marriage
as a social institution, why has much of family law moved in the opposite
direction?
A. Building a House in a Hurricane
One reason that trends in marriage and family law have been less than ideal is that
it is hard to build a house in a hurricane. The last forty years have seen dramatic
changes in social, sexual, and family mores. When social mores are changing rapidly,
it may be particularly difficult for experts to perceive, much less enact, the kind of
legal reforms that would be most supportive of the interests of children and society
as a whole.
The law must adapt to social change. But the judges and legislators who make family
law, and the legal scholars who create the climate of legal opinion which influences
judges and legislators, must exercise more caution about building houses in hurricanes,
Page 19
The basic understanding of
marriage underlying much of
the current same-sex
marriage discourse is
seriously flawed.
SER 105
lest they inadvertently institutionalize and thereby perpetuate potentially harmful
social change.
Today, as the hurricane subsides (i.e., as the divorce rate declines and unmarried
childbearing has stopped accelerating as rapidly as it did in the 1970s and 1980s), is
a particularly apt moment to survey the damage, and to reassess the goals of family
law, and the means available at law to support these goals.
46
B. Too Few Players at the Table
U.S. law is not handed down from on high even at the U.S. Supreme Court, U.S.
Supreme Court Justice Stephen Breyer said recently, The law emerges from a
conversation with judges, lawyers, professors and law students. . . .
47
There is much truth in this claim. But one of the troubles with marriage and family
law is that, when it comes to understanding and making wise law for our most basic
social institution for protecting children, it is not good enough to have a conversation
that takes place only between lawyers, judges, professors, and law students. The
conversation from which the law emerges needs to include many more players, who
are far more knowledgeable about the social institution called marriage that the law
is regulating.
In particular, the legal discourse surrounding marriage and family law needs to
incorporate the knowledge and insights of other custodians of the marriage tradition,
including the emerging consensus among family scholars on the importance of
marriage for child well-being.
C. The Skewed Perspective of the Big Divorce Bar
There is nothing nefarious or unethical about high-powered divorce lawyers
becoming involved in crafting legal proposals. But there is something extremely
limitingintellectually, morally, and sociallywhen family law discourse begins to
be dominated by the unrepresentative experience of the big divorce bar.
In the first place, highly paid divorce lawyers are paid to represent the interests
of adults, not children. Second, the big divorce bar represents primarily clients
with high incomes and major assets. In this way, the divorces they handle are
extremely unrepresentative. Most adults who divorce have limited incomes and
few assets.
When the big divorce bar dominates family law, the law begins to be shaped by the
most unrepresentative experience of the extremely affluent. The laws thus shaped
are then used to regulate the lives of the vast majority of Americans, who are not
rich, and of children, who are unrepresented at the bar.
Page 20
SER 106
Even with the best of intentions, and a broader client base, making law based on
broken and disrupted families without considering or acknowledging the effects on
all marriages represents a limited perspective. Family law today is like Grays
Pathology when it should be Grays Anatomy.
D. The Myth of Mutual Consent
For many years, legal debates about divorce law were
informed (or misinformed) by the myth of mutual consent.
Legal experts talked about no-fault divorce as if it took place
ordinarily by mutual consent, merely enabling couples who
wished to divorce to do so with a minimum of acrimony or
outside interference.
The reality of divorce in America today is that in the major-
ity of divorces, only one spouse wants to divorce.
48
For the law to unilaterally take
the side of this spouse is not government neutrality. It is to reduce, as one com-
mentator recently noted, the obligations of the marriage contract to the same status
as gambling debts (that is, to mere debts of honor unenforceable at law).
49
Divorce or separation can provide an escape hatch from truly horrific relationships.
But it also often breaks up families in situations where both spouses can acknowl-
edge many personal and emotional benefits of the marriage for themselves and their
children.
50
If two people are determined to break up their marriage, there is little the law can
do to make them live together as a family. But the myth of mutual consent under-
writing the unilateral divorce revolution wrongly suggests that most or all divorces
today are driven by such an inexorable determination on the part of the couple.
Instead, the evidence suggests that many divorced people are deeply ambivalent
about the decision to divorce, and can imagine other outcomes that might have been
better for themselves and their children.
51
Part of the goal of family law should be to
encourage such imaginings when they still can do some good, to support both
spouses, not merely the one who wishes to divorce, and to therefore find concrete
ways to encourage reconciliations, where appropriate and possible, in the majority
of distressed marriages that are not violent.
VIII. Can We Go Back?
G
IVEN THIS CRITIQUE of current family law, should American society merely go
back to early forms of family law? No. We cannot go back and we do not
want to. Many of the changes in the culture of marriage have been good for
women, children, and society, including increasing respect for the equal dignity of
Page 21
Today is a particularly apt
moment to survey the
damage, and to reassess the
goals of family law.
SER 107
men and women, increased protections for victims of domestic violence committed
inside or outside of marital relationships, and greater legal protections for children
born outside of marriage.
But if we cannot go back to the mythical past, before law and culture responded to
womens aspirations for equality, and before children were raised in large numbers
in alternative family forms, neither can we indulge in nostalgia for the 1970s, when
many educated Americans viewed anything sexually new or nontraditional as intrin-
sically progressive or life-enhancing. Having painfully learned how children, adults,
and communities suffer when marriages fall apart, or fail to take place, we cannot
go back and pretend that our current high rates of fragmented families and father-
less children represent progress, rather than a social problem to be solved.
IX. Is There a Better Way? Toward a New Working Model
in Family Law
H
OW DO WE move law towards a legal theory of marriage that is more respectful
toward and supportive of marriage as a social institution? We propose three
general insights:
1. Marriage Is Not Merely a Legal Construct.
When it comes to economics, courts, legal scholars, judges, legislators, and other
thoughtful observers have no trouble recognizing the gap between the law and the
underlying social phenomenon that the law attempts to regulate. No court in
America would preface an important decision in telecom law, for example, by flatly
declaring, Government creates the telecommunications industry, even though the
development of this or any other industry is in part dependent on the proper struc-
turing of laws governing that industry. American legal minds understand that there
is a gap between the thing economic law regulates (e.g., productive activity) and the
law itself. Despite many disagreements about particulars, American legal minds also
understand that in the realm of economics getting the structure of law right matters.
Similarly, it is hard (as yet) to imagine a court of law declaring that it creates civil
motherhood,
52
even though there are important laws regulating who the parent is,
and what the rights of parents are, and even though adoption can transfer the sta-
tus of motherhood to non-biological parents. The state understands very well that a
phenomenon as large and significant as motherhood cannot be reduced to a legal
construct or a creature of statute. In making laws about parenthood, the state is
regulating a key set of productive relationships that it does not and cannot create.
What does this mean in the context of the current marriage debates? A government
that understands that it does not create markets or motherhood needs to understand
Page 22
SER 108
that marriage cannot be reduced to a legal construct either. Marriage as a meaningful
social institutionone that makes a difference in the hearts and minds and behavior
of mothers and fathers and the wider societyis necessarily the product of civil
society: of families, faith communities, songwriters, storytellers, neighbors, and
friends, who together create a vision of what marriage means in our shared public
culture. It is family, friends, and faith communities who do the necessary and hard
work of raising children to become young men and women who respect the mar-
riage bond and at least try to live up to its demands.
This is not work that the law, alone, can do. Because mar-
riage is so intimately related to the generation of and the
protection of children, government has always been seen to
have a legitimate role in regulating the civil effects of mar-
riage.
53
The law also plays an important role in sustaining
the shared meanings and consequences of marriage. Getting
the law of marriage right therefore matters a great deal.
Part of getting marriage law right requires a renewed modesty and realism on the
part of the state, including our courts. The state cannot by itself create a marriage
that matters, one capable of constraining or channeling erotic drives of adults in
the interests of children and society. The state therefore must exercise special care
not to undermine this web of meanings sustaining our increasingly fragile marriage
culture.
The law must recognize that it is only one of many playersalbeit an important
onethat together help create and sustain a marriage culture. Civil marriage,
absent the support of civil society, is unlikely to mean much for children or society.
Only when marriage is broadly supported by law and civil society, including but not
limited to faith communities, does it remain a powerful social institution, capable of
directing the behavior of men and women in the interests of children and society.
2. Human Nature Exists and Places Limits on What Law Can
Accomplish.
Human nature exists and sets limits on what law can accomplish by fiat alone. In the
economic domain, it is well understood that, for example, while we may wish that
people would protect others property as assiduously as they protect their own, if
we make legislation based on this assumption, bad things will happen, because it is
not true.
54
(Explaining why, as one university president famously puts it, Nobody
washes rental cars.
55
)
When it comes to marriage, law must respect the reality of the ways in which
human biology, human nature, and social relationships are intertwined. We may
wish men to be, say, equally committed fathers outside of marriage as inside of
Page 23
Government needs to
understand that marriage
cannot be reduced to
a legal construct.
SER 109
it. We may even legally declare that children will have the same rights to their
fathers care and support inside and outside of marriage, but the laws commands
alone will not make it so.
56
Mother and child are intimately connected by the
bonds of pregnancy and birth. Father and child are not so linked, unless culture,
law, and society conspire to transform sperm donors into true lovers and good
husbands, and thereby into reliable fathers. A good society consciously seeks to
raise boys who aspire to be good family men. The principal vehicle in our soci-
ety, and virtually every known human society, for linking fathers to their children
is marriage.
We support laws requiring unmarried fathers, as well as married fathers, to support
their children, financially and in other ways. We also know, from 40 years of social
experimentation, that child-support payments do not replace a loving, hands-on
dad. If we want our children to know and be loved by their fathers, law and culture
must acknowledge and respond to human sexual realities by supporting a marriage
culture.
3. Social Institutions Matter and They Matter a Great Deal.
A new respect for the idea that institutions matter permeates the field of economics
and its relationship to law. As two prominent scholars argued recently, The central
message of the New Institutional Economics is that institutions matter for economic
performance.
57
Economic institutions are not created by law, although they are deeply affected by
it. Firms, markets, and contracts exist first as institutions of civil society. Their legal
treatment, however, profoundly affects the extent to which these (mostly) privately
ordered relations succeed in achieving their (partly) public goals.
Sophisticated economic thinking recognizes that contracts, for example, are not just
legal constructs, supported by legal sanctions; they are also social understandings
supported by social norms. Business people believe that, by and large, contracts are
to be honored, not only because the law will extract punishments for failing to do
so, but also because this is how honorable business people behave. These internal-
ized ideals, as well as the reputational consequences of violating business norms,
affect the way business people behave with respect to contracts. The law plays an
indispensable role in maintaining these social expectations by enforcing contracts.
But the shared understanding of the contract, and the social (and not just legal) con-
sequences of being perceived to deal in good faith, are important mechanisms for
bringing the benefits of contract to life.
58
Whereas many once believed that withdrawing legal regulation was all that was nec-
essary for the economy to flourish, the post-Soviet experience has taught economists
to realize that goods like the market depend on social institutions, such as social trust
Page 24
SER 110
and respect for the rule of law. As Furubotn and Richter conclude, The invisible
hand, if unaided by supporting institutions, tends to work slowly and at high cost.
59
If this insight is true for a purely economic institution, how much more must it be
for something as primarily and primordially social as marriage?
Judges, legislators, family law scholars, and other influential legal thinkers need to
take seriously the institutional effects of law on the culture
of marriage.
X. How Does Family Law Matter?
W
HY DOES the law matter? Historically in the United
States, legal scholars have focused on explaining
the power of law from the perspective of the
bad man.
60
In these models, the law shapes individuals
actions by changing the structure of incentivesimposing punishments (criminal
sanctions, civil liability or penalties for marital misconduct, for example), or offer-
ing benefits. These are of course extremely important functions of law and public
policy.
But it is equally important to consider the consequences of law and legal institutions
from the perspective of the good man, from the role the law plays in shaping
norms, expectations, and therefore behaviors among the law-abiding. Laws do more
than punish, as Mary Ann Glendon has pointed out: In England and the United
States the view that law is no more or less than a command backed up by organ-
ized coercion has been widely accepted. The idea that law might be educational,
either in purpose or technique, is not popular among us. . . . [L]aw is not just an
ingenious collection of devices to avoid or adjust disputes and to advance this or
that interest, but also a way that society makes sense of things.
61
It is part of a
distinctive manner of imagining the real.
62
Professor Carl Schneider points to the channeling function of law:
By and large, then, the channeling function does not primarily use
direct legal coercion. People are not forced to marry. One can con-
tract out (formally or informally) of many of the rules underlying
marriage. One need not have children, and one is not forced to treat
them lovingly. Rather, the function forms and reinforces institutions
which have significant social support and which, optimally, come to
seem so natural that people use them almost unreflectively. It relies
centrally but not exclusively on social approval of the institution, on
social rewards for its use, and on social disfavor of its alternatives.
63
Page 25
The law must recognize that
it is only one of many
players that together help
create and sustain a
marriage culture.
SER 111
As another family scholar recently put it, Laws do more than distribute rights, respon-
sibilities, and punishments. Laws help to shape the public meanings of important
institutions, including marriage and family.
64
Scholars who have adopted behavioral law and economics perspectives have
already explored some of the many ways that the social signals sent by law affect
generally prevailing social norms. For example, the laws choice of default rules
affects the parties own perceptions of what is fair or normal when they nego-
tiate contracts.
65
The law sends social signals that affect individuals and communities that are dis-
tinct from any cost-benefit analysis individuals make about incentives or punish-
ments imposed by the law. Legal scholars widely acknowledge this phenomenon
in other contexts. For example, changes in law may trigger informational or
reputational cascades, in which Americans adopt certain beliefs because they
perceive others to acknowledge them as true, or because they perceive their
social standing will be negatively affected because of what others believe to be
true and good. The social changes in racial attitudes and values triggered by civil
rights laws, for example, represent one such phenomenon. As two scholars note:
Laws that have produced compliance with little or no enforcement, such as those
that relegate smoking to designated areas and those that require people to clean
up after their dog, have much to do with the informational and reputational
mechanisms....
66
Same-sex marriage supporters are acknowledging this same privileged power of the
law to affect social meaning when, for example, they argue (as the Goodridge court
did) that the creation of separate legal status for same-sex couples would not be the
same as marriage, even if the legal benefit structure was identical.
67
We may agree or disagree about the message the law would send in such
instances, but we cannot credibly act or reason as if such social signals do not
exist, or are not significant. The laws understanding of a social institution is a
privileged and powerful one. The public, shared understanding of a basic social
institution like marriage is affected by how the law describes, understands, and
enacts marriage. Because social institutions are cognitivethey direct human
behavior by shaping shared perceptionschanging the public meaning of mar-
riage will change what marriage is and how it is experienced by every member
of the larger society.
One may see these kinds of social consequences of legal change as good, or as ques-
tionable, or as both. But to argue that these kinds of cultural effects of law do not
exist, and need not be taken into account when contemplating major changes in
family law, is to demonstrate a fundamental lack of intellectual seriousness about the
power of law in American society.
Page 26
SER 112
XI. Principles of Pro-Marriage Legal Reform: Six Criteria
L
AW AND PUBLIC POLICY have many legitimate goals, from protecting children in
alternate family forms, to promoting civility and respect for rights of individ-
uals in the public square, to encouraging equal regard between men and
women. Support for sustaining marriage is, in our view, a critical value and social
need, but we do not mean to suggest that it is the only one, or a trump card that
should settle all important conflicts of goods, or clashes of values in the public
square.
At the same time, if supporting marriage is a purported goal of a proposed legal
change, it is important to develop principles that help us to distinguish when and
what kinds of legal and policy changes are likely to support marriage as a social
institution, and what kinds of legal changes are likely to make it more difficult for
civil society to sustain a marriage culture. In that spirit we offer the following six cri-
teria for thinking through proposals intended to support marriage.
A legal or policy reform strengthens marriage as a social institution when it:
Protects the boundaries of marriage, clearly distinguishing married
couples from other personal relations, so that people and communities can
tell who is married, and who is not.
68
The harder it is to distinguish married
couples from other kinds of unions, the harder it is for communities to reinforce
norms of marital behavior and the more difficult it is for marriage to fulfill its
function as a social institution.
69
Treats the married couple as a social, legal, and financial unit. When the
law, through the tax code or other means, disaggregates the family and treats
married men and women as if they were single, this does not represent neutral-
ity. Because marriage is in fact a real economic, emotional, social, parenting, and
sexual union, the law must in justice treat married couples as a unit, rather than
as unrelated individuals.
Reinforces norms of responsible marital behavior, such as encouraging per-
manence, fidelity, financial responsibility, and mutual support and discouraging
violence or destructive conflict, for example. Marriage is not merely an expres-
sive ceremony. It is a real public commitment that has content: a substantive pur-
pose and strong social norms. While civil society must do the heavy lifting in
establishing social norms surrounding marriage, law and public policy should
reinforce and support efforts to do so.
Seeks to reduce divorce, unmarried childbearing, and/or violence and
destructive conflict in marriage. The best single indicator for how well mar-
riage is faring in American society is: What proportion of American children are
Page 27
a.
b.
c.
d.
SER 113
being born to and raised by their own married mom and dad in a reasonably har-
monious union?
70
Does not discourage childbearing (or adoption
71
) by married couples.
Children are one of the prime social goods created by marriage. Marriage as a
social and legal institution is dedicated in part to encouraging men and women
who want them to have children and raise them together.
Communicates a preference for marriage (provided it is not high-conflict
or violent) as the preferred context for childrearing, particularly to young
people who will be making the choices that affect the next generations well-
being. Legal changes intended to celebrate family diversity as a social ideal are
necessarily at odds with a marriage culture. Not every child has had or will ever
have the protection of a mom and dad joined in a reasonably harmonious marital
union. Support for all children is essential to a decent and just society, regardless
of whether their parents are married. But coping with family fragmentation in law
and culture is different from celebrating it. A pro-marriage reform envisions mar-
riage as a preferred social ideal, and not just one of many equally promising
lifestyles, especially for parents of children.
XII. Conclusion
S
TRENGTHENING MARRIAGE in American society is an important social goal. As
twelve family scholars recently put it:
Marriage is an important social good, associated with an impressively
broad array of positive outcomes for children and adults alike. Family
structure and processes are of course only one factor contributing to
child and social well-being.... But whether American society succeeds
or fails in building a healthy marriage culture is clearly a matter of
legitimate public concern.
72
The law is only one tool in this larger effort at cultural renewal, but it is an impor-
tant one. Americans are a forward-looking and optimistic people. We look forward
to a broader discussion of ways that family law, as a discipline and practice, can
support Americans marriage dreams, so that more children are raised by their own
mothers and fathers joined in loving, lasting marriages.
Page 28
e.
f.
SER 114
Appendix: Strengthening Marriage in Family Law:
Proposals
T
HIS IS A LIST of proposals intended to generate new discussion among state
legislators and family lawyers about ways law and public policy might
strengthen marriage in law and in society. As signers of this document, we do
not all endorse each of these reforms. We realize that the law, which has concrete
impact on real people, cannot be reduced to a values discussion. People of good
will who support marriage can and do disagree profoundly about particular policies
and legal approaches, including the suggestions outlined below. Continued reflection,
input, and practical experience with consequences will lead many legal and family
scholars in different directions regarding these and other pro-marriage suggestions.
We do hope, through offering concrete examples like these, to generate new attention
to the need and discussion of the best means for strengthening marriage in law and
culture, and of possible strategies for doing so.
Establish a preference for married couples in adoption law. While it may not
always be possible, and therefore should not be legally mandatory, the best interests
of a child are generally served by being raised by a married mother and father, at
least in the case of nonfamilial adoptions. Adoption exists to serve the needs of
children, not to promote adult rights to choose diverse family forms.
Offer (or mandate) a remarriage and stepfamily education workshop for cou-
ples where one or both parties have a child from a previous relationship.
Stepfamilies pose unique challenges for married couples and their children, as well
as great opportunities when they succeed. Encourage community groups (faith-
based and civic) to offer targeted help to new families in the process of blending.
Require a substantial waiting period for unilateral divorce. Create a one- or
two-year waiting period before a spouse can obtain a no-fault divorce without mutual
consent, in nonviolent marriages. Require spouses to show good faith efforts or
due diligence to save their marriages, by taking responsible steps to reconcile (in
the absence of violence).
73
Codify the basic obligations of marriage by statute. Marriage is created by the
freely given consent of a man and woman, witnessed by church and/or state, to
enter into a permanent sexual, financial, emotional, and parenting union. Its basic
obligations include sexual fidelity, permanence, mutual care and support of each
other and any children of their union. Require couples to sign an affidavit upon getting
a marriage license that they have read and understood these basic obligations.
Add a new goal to court-connected divorce education programs: Facilitating
reconciliations in nonviolent marriages. Half of all counties have court-connected
divorce education programs. These typically have just two goals: reducing litigation
Page 29
SER 115
and reducing parental acrimony. Adding a third goal of facilitating reconciliations
where possible would allow state and federal governments to work with marriage
education experts and family scholars to establish the best practices for programs
that achieve all three goals. Even when reconciliation is not reached, teaching
relationship skills will help co-parenting relationships and help the parties next
marriages.
Add a marriage message to teen pregnancy prevention programs. Programs
using federal or state government funds should teach the next generation that, ideally,
you should be grown, educated, and married before deliberately seeking to get
pregnant.
Offer marriage education, and divorce interventions, to low-income couples.
The current administration has proposed a marriage initiative that primarily offers
relationship skills and education to low-income couples who want to marry.
74
Congress should expand such legislation to offer divorce interventions designed to
reduce conflict and encourage reconciliations to low-income couples, and provide
the money necessary to evaluate such programs and establish best practices. But
even in the absence of federal legislation, faith communities, state and local govern-
ment, and community groups should look for new ways to offer effective marriage
education and divorce interventions to low-income married couples, in order to
reduce unmarried childbearing, divorce, and high-conflict or violent marriages.
Page 30
SER 116
Endnotes
1. John Witte, Jr., The Goods and Goals of Marriage, 76 NOTRE DAME L. REV. 1019 (2001).
2. The idea that legal rules may influence social norms is hardly new. June Carbone, Back to
the Future: The Perils and Promise of a Backward-Looking Jurisprudence, in RECONCEIVING THE FAMILY:
CRITICAL REFLECTIONS ON THE AMERICAN LAW INSTITUTES PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION 209,
230 n.137 (Robin Fretwell Wilson ed., 2006); see also Cass R. Sunstein, On the Expressive Function of
Law, 144 U. PA. L. REV. 2021 (1996); Lawrence Lessig, Social Meaning and Social Norms, 144 U. PA. L.
REV. 2181 (1996); Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 MICH.
L. REV. 338 (1997).
3. For example, Rights talk can obscure as much as it reveals. In particular, the portrayal of
certain legal reforms as advancing state neutrality between the moral positions of individuals, or as
increasing individual liberty in a straightforward way, obscures the reality of what is being proposed:
a new substantive model of marriage endorsed and promoted by law. The shift to unilateral divorce,
for example, does not merely make the state more neutral regarding divorce, nor does it merely
increase individual liberty. Unilateral divorce, as a legal institution, increases the freedom of individuals
to divorce by reducing their capacity to make enforceable marriage contracts with each other; it shifts
legal power in divorce negotiations from the spouse who clings to the marriage vow to the spouse
who wishes to end it. Some of us may view changes such as unilateral divorce as necessary accom-
modations to social change. Some of us may view them negatively, and as ripe for reform. But we all
must recognize that such changes are not neutral or merely freedom-enhancing. They are powerful
interventions by government into a key social institution and thus worthy of sustained and intelligent
public debate. DAN CERE, THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH AMERICA 10
(New York: Institute for American Values) (2005).
4. More children does not mean all children. Nor do we mean to imply that marriage as a social
ideal justifies or requires undermining the rights of parents who are not married. Supporting marriage
does not mean legally mandating marriage for all.
5. Katherine T. Bartlett, Saving the Family from the Reformers, 31 U.C. DAVIS L. REV. 809 (1998)
(Brigitte M. Bodenheimer Memorial Lecture on the Family).
6. Id. at 817.
7. The family structures compared in the Child Trends brief include intact married families, step-
families, cohabiting families, and single-parent families. They do not include children raised by same-
sex couples.
8. Kristin Anderson Moore et al., Marriage from a Childs Perspective: How Does Family Structure
Affect Children, and What Can We Do About It?, CHILD TRENDS RESEARCH BRIEF (Child Trends,
Washington, D.C.), June 2002, at 6 (available at http://www.childtrends.org/Files/MarriageRB602.pdf).
9. See, e.g., Suzanne M. Bianchi et al., The Gender Gap in the Economic Well-Being of Nonresident
Fathers and Custodial Mothers, 36 DEMOGRAPHY 195 (1999); Mary Naifeh, Dynamics of Economic Well-
Being, Poverty 1993-94: Trap Door? Revolving Door? Or Both? CURRENT POPULATION REPORTS: HOUSEHOLD
ECONOMIC STUDIES, P70-63 (U.S. Bureau of the Census, Washington, D.C.), July 1998; Ross Finnie,
Women, Men, and the Economic Consequences of Divorce: Evidence from Canadian Longitudinal
Data, 30(2) CANADIAN REV. OF SOC. AND ANTHROPOLOGY 205 (MAY 1993).
10. Margaret Brinig & Douglas Allen note that, despite the benefits of marriage for women (and
reciprocal costs of divorce), the majority of divorces are initiated by women. Margaret F. Brinig and
Douglas W. Allen, These Boots Are Made for Walking: Why Most Divorce Filers are Women, 2 AMER. L.
& ECON. REV. 126, 126-27, 129 (2000) (Throughout most of American history, wives rather than hus-
bands have filed for divorce. The proportion of wife-filed cases has ranged from around 60% for most
of the 19th century to, immediately after the introduction of no-fault divorce, more than 70% in some
states.... What makes the high filing rate for women most puzzling, however, is that it is generally
assumed that overall husbands should be the ones most wanting out of marriageparticularly since
the introduction of no-fault divorce. This understanding results from the focus on post-divorce financial
status. Even by the most conservative accounts, the average divorced womans standard of living
declines from the one she enjoyed during marriage, and it declines relatively more than does the average
husbands.... Yet women file for divorce more often than men. Not only do they file more often, but
some evidence suggests they are more likely to instigate separation, despite a deep attachment to their
children, and the evidence that many divorces harm children.) (citations omitted).
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11. See, e.g., W. BRADFORD WILCOX ET AL., WHY MARRIAGE MATTERS, SECOND EDITION: TWENTY-SIX
CONCLUSIONS FROM THE SOCIAL SCIENCES (New York: Institute for American Values) (2005); THE MARRIAGE
MOVEMENT: A STATEMENT OF PRINCIPLES 11 (New York: Institute for American Values) (2000) and cites
therein: Divorce and unwed childbearing create substantial public costs, paid by taxpayers. Higher
rates of crime, drug abuse, education failure, chronic illness, child abuse, domestic violence, and
poverty among both adults and children bring with them higher taxpayer costs in diverse forms: more
welfare expenditure; increased remedial and special education expenses; higher day-care subsidies;
additional child-support collection costs; a range of increased direct court administration cost incurred
in regulating post-divorce or unwed families; higher foster care and child protection services;
increased Medicaid and Medicare costs; increasingly expensive and harsh crime-control measures to
compensate for formerly private regulation of adolescent and young-adult behaviors; and many other
similar costs.... [C]urrent research suggests that these costs are likely to be quite extensive.
12. LINDA J. WAITE AND MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER,
HEALTHIER, AND BETTER-OFF FINANCIALLY (2000).
13. See, e.g., JUDITH WALLERSTEIN ET AL., THE UNEXPECTED LEGACY OF DIVORCE: A 25 YEAR LANDMARK STUDY
(2000); ELIZABETH MARQUARDT, BETWEEN TWO WORLDS: THE INNER LIVES OF CHILDREN OF DIVORCE (2005).
14. Twelve leading family scholars recently summarized the research literature this way: Marriage
is an important social good associated with an impressively broad array of positive outcomes for chil-
dren and adults alike.... [W]hether American society succeeds or fails in building a healthy marriage
culture is clearly a matter of legitimate public concern. WILLIAM J. DOHERTY ET AL., WHY MARRIAGE
MATTERS: 21 CONCLUSIONS FROM THE SOCIAL SCIENCES 6 (New York: Institute for American Values) (2002);
see also Kristin Anderson Moore et al., Marriage from a Childs Perspective: How Does Family Structure
Washington, D.C.), June 2002, at 6 (available at http://www.childtrends.org/Files/MarriageRB602.pdf).
15. Joshua R. Goldstein, The Leveling of Divorce in the United States, 36(3) DEMOGRAPHY 409-414
(Aug. 1999).
16. In 1977, a Gallup poll of 13 to 17 year olds found that 55 percent of teens felt it was too
easy to get a divorce. By 2003, the proportion had jumped to 77 percent. Heather Mason, What Does
D-I-V-O-R-C-E Spell for Teens? GALLUP POLL TUESDAY BRIEFING, June 17, 2003.
17. Associated Press, Married Households Rise Again Among Blacks, Census Finds, N.Y. TIMES,
April 26, 2003, at A15.
18. Perhaps the most important indicator of marriages health, from a child-centered standpoint,
is the proportion of children living with both biological parents in an intact, low-conflict marriage.
Between 1991 and 2001 (after years of decreases), the proportion of American children living with
both biological parents rose slightly from 61.7% in 1991 to 62.2% in 2001. Stacy Furukawa, The Diverse
Living Arrangements of Children: Summer 1991, CURRENT POPULATION REPORTS P70-38 (U.S. Bureau of
the Census, Washington, D.C.), Sept. 1994, at 3-4 (Tables 1-2); Rose M. Krieder & Jason Fields, Living
Arrangements of Children: 2001, CURRENT POPULATION REPORTS P70-104 (U.S. Bureau of the Census,
Washington, D.C.), July 2005, at 3 (Table 1).
19. Paul R. Amato et al., Continuity and Change in Marital Quality Between 1980 and 2000, 65(1)
J. MARRIAGE & FAM. 1 (2003).
20. Recent reductions in divorce have been concentrated among the college educated (Steven P.
Martin, Growing Evidence for a Divorce Divide? Education and Marital Dissolution Rates in the U.S.
Since the 1970s (Md. Population Res. Center Working Paper, available at
http://www.popcenter.umd.edu/people/martin_steven/papers/marital_dissolutions.doc); and the latest
Census data shows that unwed childbearing, which appeared to be leveling off in the late 90s and
early 21st century, has resumed its rise. Joyce A. Martin et al., Births: Final Data for 2003, 54(2)
NATIONAL VITAL STATISTICS REPORTS 10 (Table D) (Sept 8, 2005).
21. Scholars who have become increasingly disturbed by this tendency to understand family law
through the lens of rights-bearing adults span the ideological spectrum. See, e.g., MARTHA ALBERTSON
FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES (1995); MARY
ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991); BARBARA DAFOE
WHITEHEAD, THE DIVORCE CULTURE (1997); Carl E. Schneider, Moral Discourse and the Transformation
of American Family Law, 83 MICH. L. REV. 1803 (1985).
22. See DAN CERE, THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH AMERICA (New
York: Institute for American Values) (2005); Harry D. Krause, Marriage for the New Millennium:
Heterosexual, Same SexOr Not At All?, 34 FAM. L.Q. 271 (2000); Martha Minow, Redefining Families:
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Whos In and Whos Out?, 62 U. COLO. L. REV. 269 (1991); Ira M. Ellman, Unmarried Partners and the
Legacy of Marvin v. Marvin: Contract Thinking Was Marvins Fatal Flaw, 76 NOTRE DAME L. REV. 1365,
1373-74 (2001).
23. Adoption in our society, for example, emerged as an important institution whose purpose is
to serve childrens needs, not adult interests or desires.
24. See, e.g., Marsha Garrison, Marriage Matters: Whats Wrong with the ALIs Domestic Partnership
Proposal, in RECONCEIVING THE FAMILY: CRITICAL REFLECTIONS ON THE AMERICAN LAW INSTITUTES PRINCIPLES OF
THE LAW OF FAMILY DISSOLUTION (Robin Fretwell Wilson ed., 2006); Anita Bernstein, For and Against
Marriage: A Revision, 102 MICH L. REV. 129 (2003); Elizabeth S. Scott, Divorce, Childrens Welfare, and
the Culture Wars, 9 VA. J. SOC. POLY & L. 95 (2001); Robert F. Cochran, Jr. & Paul C. Vitz, Child Protective
Divorce Laws: A Response to the Effects of Parental Separation on Children, 17 FAM. L.Q. 327 (1983).
25. Helen M. Alvare, The Turn Toward the Self in the Law of Marriage and Family: Same-Sex
Marriage and its Predecessors, 16 STAN. L. & POLY REV. 135, 152 (2005) (quoting 2 THE DIVORCE LAW
DEBATES, TRANSCRIPTS FROM THE 1965-1973 ANNUAL MEETINGS OF THE UNIFORM LAW COMMISSION 139 (Judy
Parejko ed.) (Aug. 3, 1970) (emphasis added).
26. As Frank Furstenberg described the evolution of scholarly thinking on this issue:
It is probably true that most children who live in a household filled with continual
conflict between angry, embittered spouses would be better off if their parents split
upassuming that the level of conflict is lowered by the separation. And there is
no doubt that the rise in divorce has liberated some children (and their custodial
parents) from families marked by physical abuse, alcoholism, drugs, and violence.
But we doubt that such clearly pathological descriptions apply to most families that
disrupt. Rather, we think there are many more cases in which there is little open
conflict, but one or both partners finds the marriage personally unsatisfying.... A
generation ago, when marriage was thought of as a moral and social obligation,
most husbands and wives in families such as this stayed together. Today, when mar-
riage is thought of increasingly as a means of achieving personal fulfillment, many
more will divorce. Under these circumstances, divorce may well make one or both
spouses happier; but we strongly doubt that it improves the psychological well-
being of the children.
FRANK F. FURSTENBERG, JR., & ANDREW J. CHERLIN, DIVIDED FAMILIES: WHAT HAPPENS TO CHILDREN WHEN
PARENTS PART 71-72 (1991).
See also Andrew J. Cherlin, Going to Extremes: Family Structure, Childrens Well-Being, and Social
Science, 36 DEMOGRAPHY 421, 427 (1999):
[T]he evidence suggests that genetic inheritance and its interaction with the envi-
ronment are part of the story but far from the whole story. Thus the lesson I draw
is that the actual effect of family structure lies between the extremes. Whether a
child grows up with two biological parents, I conclude, makes a difference in his
or her life; it is not merely an epiphenomenon. Not having two parents at home
sometimes leads to short- and long-term problems, but not all the differences we
see in outcomes are the results of family structure. Some of the differences would
have occurred anyway. Moreover, parental divorce or being born to unmarried
parents does not automatically lead to problems. Many (perhaps most) children
who grow up in single-parent families or in stepfamilies will not be harmed seri-
ously in the long term.... Growing up in single-parent family is not a sentence to
life at emotional hard labor, but it sometimes has consequences that parents would
not wish upon their children.
Kristin Anderson Moore et al., Marriage from a Childs Perspective: How Does Family Structure
Washington, D.C.), June 2002, at 6 (available at http://www.childtrends.org/Files/MarriageRB602.pdf):
Research clearly demonstrates that family structure matters for children, and the
family structure that helps children the most is a family headed by two biological
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parents in a low-conflict marriage. Children in single-parent families, children born
to unmarried mothers, and children in stepfamilies or cohabiting relationships face
higher risks of poor outcomes.... There is thus value for children in promoting
strong, stable marriages between biological parents.
27. As Andrew Cherlin notes, the social norms surrounding marriage have significantly weakened
in recent decades: [W]hat has occurred over the past few decades is the deinstitutionalization of mar-
riage.... By deinstitutionalization I mean the weakening of the social norms that define peoples behavior
in a social institution such as marriage. In times of social stability, the taken-for-granted nature of
norms allows people to go about their lives without having to question their actions or the actions of
others. But when social changes produces situations outside the reach of established norms, individuals
can no longer rely on shared understandings of how to act. Andrew J. Cherlin, The
Deinstitutionalization of American Marriage, 66(4) J. MARR. & FAM. 848, 848 (2004).
28. William A. Galston, Divorce American Style, 124 THE PUBLIC INTEREST 12, 13 (Summer 1996).
29. For an analysis of these trends see DAN CERE, THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE
CRISIS IN NORTH AMERICA (New York: Institute for American Values) (2005).
30. Harry D. Krause, Marriage for the New Millennium: Heterosexual, Same SexOr Not At All?,
34 FAM. L.Q. 271, 276 (2000).
31. Id. at 278 (emphasis in original).
32. American Law Institute, Introduction, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND
RECOMMENDATIONS (2002). For example, certain custody rules run counter to the commitment that this
society avows towards family diversity. (Overview of Chapter 2, I. The Current Legal Context); Parents
have rights because in part, Society, in turn, benefits from the diverse social fabric that is created by
the decentralized manner in which [childrens] care is provided. (Overview of Chapter 2, I. The
Current Legal Context); One of the principles of Chapter 2 is to preserve the diversity of parenting
arrangements within families, (Overview of Chapter 2, II. An Overview of the Principles of Chapter 2);
These proposed changes help[ ] to move beyond the terms of public policy debates that posit a best
way of dividing up responsibility for children...to a legal framework focusing on the diverse circum-
stances and possibilities of each individual family. (Overview of Chapter 2, II. An Overview of the
Principles of Chapter 2).
33. Id. at 6.02 cmt. a (emphasis added).
34. Id. at 6.016.06.
35. For example, the Ontario Family Law Act of 1990 defines spouse for purposes of support
obligations to include (in addition to the parties to a marriage) either of two persons who are not
married to each other and have cohabited, (a) continuously for a period of not less than three years,
or (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.
R.S.O. 1990, ch. F.3, 29. See also Nicholas Bala, Controversy Over Couples in Canada: The Evolution
of Marriage and Other Adult Interdependent Relationships, 29 QUEENS L.J. 41, 45-59 (2003) (describing
Canadian provincial support rules); Katharina Boele-Woelki, Private International Law Aspects of
Registered Partnerships and Other Forms of Non-Marital Cohabitation in Europe, 60 LA. L. REV. 1053
(2000) (describing legal status of nonmarital cohabitation in Europe); Bill Atkin, The Challenge of
Unmarried CohabitationThe New Zealand Response, 37 FAM. L.Q. 303 (2003); Lindy Willmott et al.,
De Facto Relationships Property Adjustment LawA National Direction, 17 AUSTL. J. FAM. L. 1, 2-5
(2003) (describing differences in state rules).
36. One commentator refers to this as a conscriptive approach to marriage-like relationships.
Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligation,
52 UCLA L. REV. 815 (2005).
37. But for a dissenting view on this particular point, see ROBERT E. RODES, JR., ON LAW AND
CHASTITY 125-27 (2006).
38. See, e.g., Mary L. Bonauto, Civil Marriage as a Locus of Civil Rights Struggles, 30 HUMAN RIGHTS
3, 7 (Summer 2003) ([C]hild-rearing experts in the American Academy of Pediatrics, the American
Psychiatric Association, and the American Psychological Association insist that the love and commit-
ment of two parents is most critical for childrennot the parents sex or sexual orientation.); MICHAEL
S. WALD, SAME-SEX COUPLES: MARRIAGE, FAMILIES, AND CHILDREN: AN ANALYSIS OF PROPOSITION 22THE
KNIGHT INITIATIVE 11 (Stanford, CA: The Stanford Institute for Research on Women and Gender & The
Stanford Center on Adolescence) (1999) (Assessing the claim that it is better for children to be raised
by two opposite-sex married parents, Stanford University Law Professor Michael Wald points to social
Page 34
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science research and concludes baldly, [T]he evidence does not support these claims.); Editorial, Not
Fair, Governor, BOSTON GLOBE, March 3, 2005 (Romney has taken a page from President Bushs illogic
by insisting that every child has a right to a mother and a father, implying that two women or two
men could not possibly do the job. But many studies have shown that, while children fare better having
two parents, the sexual orientation of those parents is inconsequential.).
39. Norval D. Glenn, The Struggle for Same-Sex Marriage, 41(6) SOCIETY 25 (Sept./Oct. 2004).
40. Charles J. Reid, Jr., The Augustinian Goods of Marriage: The Disappearing Cornerstone of the
American Law of Marriage, 18 BYU J. PUB. L. 449, 473-474 (2004).
41. See, e.g., Herma Hill Kay, From the Second Sex to the Joint Venture: An Overview of Womens
Rights and Family Law in the United States During the Twentieth Century, 88 CAL. L. REV. 2017, 2089
(2000); Sanford N. Katz, Marriage as Partnership, 73 NOTRE DAME L. REV. 1251 (1998); Marjorie E.
Kornhauser, Theory Versus Reality: The Partnership Model of Marriage in Family and Income Tax Law,
69 TEMP. L. REV. 1413 (1996); Bea Ann Smith, The Partnership Theory of Marriage: A Borrowed Solution
Fails, 68 TEX. L. REV. 689 (1990); Katherine Spaht, Solidifying the No-Fault Revolution: Postmodern
Marriage as Seen Through the Lens of ALIs Compensatory Payments, in RECONCEIVING THE FAMILY:
CRITICAL REFLECTIONS ON THE AMERICAN LAW INSTITUTES PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION 249
(Robin Fretwell Wilson ed., 2006).
42. Goodridge v. Dept. of Publ. Health, 798 N.E.2d 941, 954 (Mass. 2003).
43. Citizens for Equal Protection, Inc. v. Bruning, 368 F. Supp. 2d 980, 999 (D. Neb. 2005), revd
No. 05-2604, 2006 U.S. App. LEXIS 17723 (8th Cir. July 14, 2006).
44. See, e.g., Hernandez v. Robles, 805 N.Y.S. 2d 354 (N.Y. App. 2005), affd Nos. 86-89, 2006 N.Y.
LEXIS 1836 (July 6, 2006). (The law...sets up heterosexual marriage as the cultural, social and legal
ideal in an effort to discourage unmarried childbearing and to encourage sufficient marital childbear-
ing to sustain the population and society; the entire society, even those who do not marry, depends
on a healthy marriage culture for this latter, critical, but presently undervalued, benefit. Marriage laws
are not primarily about adult needs for official recognition and support, but about the well-being of
children and society, and such preference constitutes a rational policy decision.); Lewis v. Harris, 875
A.2d 259, 269 n.2 (N.J. App. 2005) (We...note that the historical and prevailing contemporary concep-
tion of marriage as solely a union between a single man and a single woman is based partly on soci-
etys view that this institution plays an essential role in propagating the species and child rearing.);
Morrison v. Sadler, 821 N.E.2d 15, 24 (Ind. App. 2005) (The State, first of all, may legitimately create
the institution of opposite-sex marriage, and all the benefits accruing to it, in order to encourage male-
female couples to procreate within the legitimacy and stability of a state-sanctioned relationship and
to discourage unplanned, out-of-wedlock births resulting from casual intercourse.); Smelt v. County
of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal. 2005) (The Court finds it is a legitimate interest to
encourage the stability and legitimacy of what may reasonably be viewed as the optimal union for
procreating and rearing children by both biological parents. Because procreation is necessary to per-
petuate humankind, encouraging the optimal union for procreation is a legitimate government interest.
Encouraging the optimal union for rearing children by both biological parents is also a legitimate pur-
pose of government. The argument is not legally helpful that children raised by same-sex couples may
also enjoy benefits, possibly different, but equal to those experienced by children raised by opposite-
sex couples. It is for Congress, not the Court, to weigh the evidence.); Wilson v. Ake, 354 F. Supp.
2d 1298, 1309 (M.D. Fla. 2005) ([T]his court...is bound by the Eleventh Circuits holding that encour-
aging the raising of children in homes consisting of a married mother and father is a legitimate state
interest.... DOMA is rationally related to this interest.)(internal citations omitted); In re Kandu, 315
B.R. 123, 146 (Bankr. W.D. Wash. 2004) (Authority exits [sic] that the promotion of marriage to encour-
age the maintenance of stable relationships that facilitate to the maximum extent possible the rearing
of children by both of their biological parents is a legitimate congressional concern.); Standhardt v.
Superior Court, 77 P.3d 451, 463-64 (Ariz. App. 2003) (We hold that the State has a legitimate interest
in encouraging procreation and child-rearing within the marital relationship, and that limiting marriage
to opposite-sex couples is rationally related to that interest.); Dean v. District of Columbia, 653 A.2d
307, 337 (D.C. App. 1995) ([I]t appears that the Supreme Court has seen marriage as having a tradi-
tional principal purpose: to regulate and legitimize the procreation of children. See Zablocki [v.
Redhail, 434 U.S. 374, 385-86 (1978)]; Skinner [v. Oklahoma, 316 U.S. 535, 541 (1942)].... I believe that
this central purpose of the marriage statutethis emphasis on child-bearingprovides the kind of
rational basis defined in Heller, 113 S. Ct. at 2642-43, permitting limitation of marriage to heterosexual
couples.).
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45. Andersen v. King County, Nos. 75934-1, 75956-1, 2006 Wash. LEXIS 598 (July 26, 2006);
Hernandez v. Robles, Nos. 86-89, 2006 N.Y. LEXIS 1836 (July 6, 2006).
46. For an assessment of such ongoing efforts in law and public policy to strengthen marriage,
see THEODORA OOMS ET AL., BEYOND MARRIAGE LICENSES: EFFORTS TO STRENGTHEN MARRIAGE AND TWO-
PARENT FAMILIES, A STATE-BY-STATE SNAPSHOT (Washington, D.C.: Center for Law and Social Policy)
(April 2004).
47. Associated Press, Justices Debate International Law on TV, N.Y. TIMES, January 13, 2005.
48. Sanford L. Braver et al., Who Divorced Whom? Methodological and Theoretical Issues, 20 (1/2)
J. DIVORCE & REMARRIAGE 1, 7 (1993) (In a study of divorcing couples responding to the question Which
one of you was the first to want out of the marriage? less than 10% of respondents indicated that it
was a mutual decision); FRANK F. FURSTENBERG, JR., & ANDREW J. CHERLIN, DIVIDED FAMILIES: WHAT HAPPENS
TO CHILDREN WHEN PARENTS PART 22 (1991) (Four out of five marriages ended unilaterally, usually at
the wifes insistence.); Joseph Hopper, The Rhetoric of Motive in Divorce, 55(4) J. MARR & FAM 801,
805 (1993) ([S]tudies have noted that most divorcing people describe their divorces as non-mutual
and that they have no difficulty specifying who decided on a divorce and who did not).
49. When the law declared that it couldnt judge matrimonial disputes and would henceforth treat
spouses who kept their marriage vows the same as those who repudiated them, it put a once-
sacramental institution on the legal footing of a gambling debt. George Jonas, The Window Was
Broken in the 1960s, NATIONAL POST (CANADA), February 7, 2005.
50. Joseph Hopper, The Rhetoric of Motive in Divorce, 55(4) J. MARR & FAM 801 (1993).
51. See, e.g., Joseph Hopper, The Rhetoric of Motive in Divorce, 55(4) J. MARR & FAM 801 (1993).
E. Mavis Hetherington found that 20 percent of adults who divorced had enhanced lives as a result;
10 percent were competent loners; 40 percent had different partners and different marriages, but
usually the same problems; the remaining 30 percent were judged worse off because of the divorce.
E. MAVIS HETHERINGTON & JOHN KELLY, FOR BETTER OR FOR WORSE: DIVORCE RECONSIDERED 6-7 (2002).
Several state-wide polls of divorced adults show that many wish they had tried harder to make their
marriage work. GLENN T. STANTON, 1998 SOUTH CAROLINA MARITAL HEALTH INDEX 38-42 (1998) (62% of
divorced South Carolinians wished they had tried harder to keep their marriage together); NEW JERSEY
FAMILY POLICY COUNCIL, NEW JERSEY MARRIAGE REPORT: AN INDEX OF MARITAL HEALTH (1999) (46% of
divorced New Jersey adults wish they had tried harder to work through differences before divorcing);
MINNESOTA FAMILY INSTITUTE, MINNESOTA MARRIAGE REPORT (1998) (66% of divorced Minnesotans responded
affirmatively to the question Looking back, do you wish you and your ex-spouse had tried harder to
work through your differences?). See also PAUL R. AMATO & ALAN BOOTH, A GENERATION AT RISK: GROWING
UP IN AN ERA OF FAMILY UPHEAVAL 220 (1997) (noting that only 30% [of parents who divorced] reported
more than two serious quarrels in the last month, and 23% reported that they disagreed often or very
often with their spouses).
52. Although there are signs of interest in deconstructing parenthood in this way, as well. See,
e.g., Civil Marriage Act, Consequential Amendments, Bill C-38, 38th Parliament (Can) (1st Sess. 2005);
LAW COMMISSION OF CANADA, BEYOND CONJUGALITY: RECOGNIZING AND SUPPORTING CLOSE PERSONAL ADULT
RELATIONSHIPS xxiv (2001), (referring to parent-child relationships as intergenerational relationships that
involved the rearing of children.); AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION:
ANALYSIS AND RECOMMENDATIONS 2.03(1) (2002) (describing three categories of parents: unless other-
wise specified, a parent is either a legal parent, a parent by estoppel, or a de facto parent.) In
comments, the ALI reporters note that the category of legal parent will ordinarily include biological
parents, whether or not they are or ever have been married to each other, and adoptive parents. Id.
2.03, cmt. a. See also RELATIVE VALUES: RECONFIGURING KINSHIP STUDIES (Sarah Franklin & Susan
McKinnon, eds., 2001); JUDITH BUTLER, UNDOING GENDER 102-130 (2004) (Chapter 5, Is Kinship Always
Already Heterosexual?); Helen Rhoades, The Rise and Rise of Shared Parenting Laws: A Critical
Perspective, 19 CAN. J. FAM. L. 75, 107-108 (2002); JONATHAN HERRING, FAMILY LAW 264, 305ff (2001) (sug-
gesting 5 distinct varieties of parenthood: genetic parenthood, coital parenthood, gestational parent-
hood, post-natal (social or psychological) parenthood, and intentional parenthood); Katharine T.
Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the
Premise of the Nuclear Family Has Failed, 70 VA. L. REV. 879 (1984); Conference Description, Task
Force Roundtable, Parentage Reform Conference, William and Mary Law School, Sept. 29-30, 2005
(What would be an ideal set of rules for assigning newborn children to parents?).
53. See, e.g., Lynn D. Wardle, Multiply and Replenish: Considering Same-Sex Marriage in Light
of State Interests in Marital Procreation, 24 HARV. J. L. & PUB. POLY 771 (2001).
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54. Recent advances in behavioral law and economics, pointing to systematic irrational biases in
human cognition and behavior, which some argue give rise to a need for a more active role by gov-
ernment in managing markets, are another example of taking human nature, and the limits it imposes,
seriously. See, e.g., BEHAVIORAL LAW AND ECONOMICS (Cass R. Sunstein ed., 2000).
55. Thomas L. Friedman, Iraqis at the Wheel, N.Y. TIMES, Nov. 6, 2003, at A33 (I repeat, yet again,
Lawrence Summers dictum: In the history of the world, no one has ever washed a rented car.).
56. Sandra L. Hofferth & Kermyt G. Anderson, Are All Dads Equal? Biology Versus Marriage as a
Basis for Paternal Investment, 65 J. MARR & FAM. 213, 213 (2003); Robin Fretwell Wilson, Evaluating
Marriage: Does Marriage Matter to the Nurturing of Children?, 42 SAN DIEGO L. REV. 847 (2005).
57. EIRIK G. FURUBOTN & RUDOLF RICHTER, INSTITUTIONS AND ECONOMIC THEORY: THE CONTRIBUTIONS OF
THE NEW INSTITUTIONAL ECONOMICS 1 (2d ed. 2005).
58. For example, The mechanism design literature focuses on the ex ante (or incentive align-
ment) side of contract and assumes that disputes are routinely referred to and that justice is effectively
(indeed, costlessly) dispensed by the courts. In contrast, transaction cost economics maintains that the
governance of contractual relations is primarily effected through the institutions of private ordering
rather than through legal centralism. OLIVER E. WILLIAMSON, THE ECONOMIC INSTITUTIONS OF CAPITALISM
xii (1985).
59. EIRIK G. FURUBOTN AND RUDOLF RICHTER, INSTITUTIONS AND ECONOMIC THEORY: THE CONTRIBUTIONS
OF THE NEW INSTITUTIONAL ECONOMICS 20 (2d ed. 2005).
60. See Oliver W. Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 459 (1897) (If you want
to know the law and nothing else, you must look at it as a bad man, who cares only for the material
consequences which such knowledge enables him to predict, not as a good one, who finds his reasons
for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.).
61. MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW: AMERICAN FAILURES, EUROPEAN
CHALLENGES 7-8 (1987).
62. Id. at 8 (quoting CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE
ANTHROPOLOGY 175 (1983)).
63. Carl E. Schneider, The Channeling Function in Family Law, 20 HOFSTRA L. REV. 495, 504 (1992).
64. DAN CERE, THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH AMERICA 10 (New
York: Institute for American Values) (2005).
65. For example, The most fundamental insight for contract theory provided by evidence of the
status quo bias is that the choice of default rules is always relevant, not just in situations of high trans-
action costs or asymmetric information. If lawmakers choice of default terms alters parties prefer-
ences for contract termscausing an increase in the strength of their preferences for the default term
and a decrease in the strength of their preferences for alternative termsthe choice of default terms
has the potential to affect any private contract. Russell Korobkin, Behavior Economics, Contract
Formation, and Contract Law, in BEHAVIORAL LAW AND ECONOMICS 116, 137 (Cass R. Sunstein ed., 2000)
(emphasis added). See also Russell Korobkin, The Status Quo Bias and Contract Default Rules, 83
CORNELL L. REV. 608 (1998); Russell Korobkin, Inertia and Preference in Contract Negotiation: The
Psychological Power of Default Rules and Form Terms, 51 VAND. L. REV. 1583 (1998); Margaret F. Brinig
& Steven L. Nock, Marry Me, Bill: Should Cohabitation be the (Legal) Default Option? 64 LA. L. REV.
403 (2004).
66. Timur Kuran & Cass R. Sunstein, Controlling Availability Cascades, in BEHAVIORAL LAW AND
ECONOMICS 374, 395 (Cass R. Sunstein ed., 2000).
67. So the Massachusetts Supreme Judicial Court concluded with respect to a civil unions bill,
The dissimilitude between the terms civil marriage and civil union is not innocuous; it is a considered
choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to
second-class status. Opinions of the Justices to the Senate, 802 N.E.2d 565, 570 (Mass. 2004).
68. Giving special recognition to marriage does not imply support for punitive discrimination
against other family forms, which we reject as harmful and unjust to children.
69. See note 35, supra.
70. Encouraging adoption by married couples, where a child lacks even one biological parent
capable of raising him or her, is another important goal for public policy.
71. At least for children who are involved in nonfamilial adoptions. There is some evidence that
kinship care may be better for children, at least in communities where the extended family is a
cultural tradition. Margaret F. Brinig & Steven L. Nock, How Much Does Legal Status Matter? Adoptions
by Kin Caregivers, 36 FAM. L.Q. 449 (2002).
Page 37
SER 123
72. WILLIAM J. DOHERTY, ET AL, WHY MARRIAGE MATTERS: 21 CONCLUSIONS FROM THE SOCIAL SCIENCES 6
(New York: Institute for American Values) (2002).
73. A similar idea was proposed by Elizabeth S. Scott and Robert E. Scott, Marriage As Relational
Contract, 84 VA. L. REV. 1225 (1998). See also John Crouch, No-Fault Divorce Laws and Divorce Rates
in the United States and Europe: Variations and Correlations, in THE FAMILY IN THE NEW MILLENNIUM:
PROTECTING THE NATURAL AND FUNDAMENTAL GROUP UNIT OF SOCIETY (Scott A. Loveless & Thomas B.
Holman eds., forthcoming 2006).
A model for such legislation might be found by amending the Virginia rule.
Va. Code Ann. 20-91 (2006) (Grounds for divorce; other grounds include adultery, felony con-
viction with confinement for more than one year with no subsequent cohabitation, and cruelty or
desertion after a year):
A. A divorce from the bond of matrimony may be decreed:...(9)(a) On the applica-
tion of either party if and when the husband and wife have lived separate and apart
without any cohabitation and without interruption for one year. In any case where
the parties have entered into a separation agreement and there are no minor chil-
dren either born of the parties, born of either party and adopted by the other or
adopted by both parties, a divorce may be decreed on application if and when the
husband and wife have lived separately and apart without cohabitation and with-
out interruption for six months....; as follows:
Proposed revision:
A. A divorce from the bond of matrimony may be decreed:... (9)(a) On the appli-
cation of [both parties] if and when the husband and wife have lived separate and
apart without any cohabitation and without interruption for one year, [or by either
party when the husband and wife have lived separate and apart without any cohab-
itation and without interruption for two years]. In any case where the parties have
entered into a separation agreement and there are no minor children either born of
the parties, born of either party and adopted by the other or adopted by both par-
ties, a divorce may be decreed on application if and when the husband and wife
have lived separately and apart without cohabitation and without interruption for
six months....
74. With the passage of the administrations Healthy Marriage Initiative, federal funds are now
available for exactly this kind of intervention. Deficit Reduction Act of 2005, Pub. L. No. 109-171,
7103, 120 Stat. 138 (to be codified at 42 U.S.C. 603(a)(2)).
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Page 39
Signatories
Affiliations listed for identification purposes only.
Lawrence A. Alexander, Warren Distinguished Professor of Law, University of San Diego
School of Law
Douglas W. Allen, Burnaby Mountain Professor, Department of Economics, Simon Fraser
University
Helen M. Alvare, Associate Professor of Law, Columbus School of Law, The Catholic
University of America
Eric G. Andersen, Associate Dean and Professor of Law, University of Iowa College of Law
Ralph C. Anzivino, Professor of Law, Marquette University Law School
Matthew J. Astle, Associate, Wiley Rein & Fielding (Washington, DC)
John S. Baker, Jr., George M. Armstrong, Jr. Professor of Law, Louisiana State University Law
Center
Iain T. Benson, Executive Director, Centre for Cultural Renewal (Ottawa, Ontario)
Thomas C. Berg, Professor of Law, University of St. Thomas School of Law (Minnesota)
G. Robert Blakey, William J. & Dorothy K. ONeill Professor of Law, Notre Dame Law School
David Blankenhorn, Founder and President, Institute for American Values (New York, NY)
Lackland H. Bloom, Jr., Professor of Law, Dedman School of Law, Southern Methodist
University
Thomas G. Bost, Professor of Law, Pepperdine University School of Law
William S. Brewbaker III, Professor of Law, University of Alabama School of Law
Lester Brickman, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University
Margaret F. Brinig, Sorin Professor of Law, Notre Dame Law School
Kingsley R. Browne, Professor of Law, Wayne State University Law School
Don Browning, Alexander Campbell Professor Emeritus of Ethics and the Social Sciences,
University of Chicago Divinity School
Ernest Caparros, Professor of Law Emeritus, University of Ottawa
Dan Cere, Director, Institute for the Study of Marriage, Law and Culture (Montreal, Quebec)
Ellen T. Charry, Harmon Associate Professor of Systematic Theology, Princeton Theological
Seminary
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Page 40
Robert F. Cochran, Jr., Louis D. Brandeis Professor of Law, Pepperdine University School of Law
Lloyd Cohen, Professor of Law, George Mason University School of Law
John E. Coons, Robert L. Bridges Professor of Law Emeritus, University of California, Berkeley
School of Law
Rev. John J. Coughlin, O.F.M., Professor of Law, Notre Dame Law School
John Coverdale, Professor of Law, Seton Hall Law School
John Crouch, family law attorney, Crouch & Crouch Law Offices (Arlington, VA)
Craig W. Dallon, Associate Dean and Professor of Law, Creighton University School of Law
Joseph W. Dellapenna, Professor of Law, Villanova University School of Law
George W. Dent, Jr., Schott - van den Eynden Professor of Law, Case Western Reserve
University School of Law
David K. DeWolf, Professor of Law, Gonzaga University School of Law
William J. Doherty, Professor of Family Social Science and Director of the Marriage and
Family Therapy Program, University of Minnesota
Richard F. Duncan, Welpton Professor of Constitutional Law, University of Nebraska College
of Law
John E. Dunsford, Chester A. Meyers Professor of Law, Saint Louis University School of Law
John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman
University School of Law and Director, The Claremont Institute Center for Constitutional
Jurisprudence
Jean Bethke Elshtain, Laura Spelman Rockefeller Professor of Social and Political Ethics,
University of Chicago Divinity School
John Fee, Professor of Law, J. Reuben Clark Law School, Brigham Young University
Scott FitzGibbon, Professor of Law, Boston College Law School
Maggie Gallagher, President, Institute for Marriage and Public Policy (Manassas, VA)
William A. Galston, Senior Fellow, The Brookings Institution
Richard W. Garnett, Lilly Endowment Associate Professor of Law, Notre Dame Law School
George E. Garvey, Vice Provost and Dean of Graduate Studies, The Catholic University of
America
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Page 41
James A. Gash, Associate Professor of Law and Associate Dean for Student Life, Pepperdine
University School of Law
Robert P. George, McCormick Professor of Jurisprudence, Princeton University
Stephen Gilles, Professor of Law, Quinnipiac University School of Law
Mary Ann Glendon, Learned Hand Professor of Law, Harvard Law School
Norval Glenn, Ashbel Smith Professor of Sociology, University of Texas, Austin
Lino A. Graglia, A. Dalton Cross Professor of Law, University of Texas School of Law
Christopher B. Gray, Professor and Chair, Department of Philosophy, Concordia University
Timothy L. Hall, Associate Provost and Professor of Law, University of Mississippi School of
Law
Scott C. Idleman, Professor of Law, Marquette University Law School
Arthur J. Jacobson, Max Freund Professor of Litigation and Advocacy, Benjamin N. Cardozo
School of Law, Yeshiva University
William H. Jeynes, Professor of Education, California State University, Long Beach
Kris W. Kobach, Daniel L. Brenner/UMKC Scholar and Professor of Law, UMKC School of Law
Thomas C. Kohler, Professor of Law, Boston College Law School
Michael I. Krauss, Professor of Law, George Mason University School of Law
Michael G. Lawler, Director, Center for Marriage and Family, Creighton University
Randy Lee, Professor of Law, Widener School of Law
Leonard J. Long, Professor of Law, Quinnipiac University School of Law
Daniel H. Lowenstein, Professor of Law, University of California, Los Angeles
Calvin R. Massey, Professor of Law, Hastings College of the Law, University of California
Phillip L. McIntosh, Associate Dean and Professor of Law, Mississippi College School of Law
Pamela Rogers Melton, Associate Director for Administration, Coleman Karesh Law Library,
University of South Carolina
Geoffrey P. Miller, Stuyvesant P. Comfort Professor of Law, New York University School of Law
Stephen Monsma, Professor of Political Science Emeritus, Pepperdine University
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Page 42
John E. Murray, Jr., Chancellor and Professor of Law, Duquesne University
Robert F. Nagel, Rothgerber Professor of Constitutional Law, University of Colorado School of Law
John Nagle, John N. Matthews Professor and Associate Dean for Faculty Research, Notre
Dame Law School
Grant Nelson, Professor of Law, University of California, Los Angeles
Leonard Nelson, Professor of Law, Cumberland Law School, Samford University
Joel A. Nichols, Associate Professor of Law, Pepperdine University School of Law
Steven L. Nock, Commonwealth Professor of Sociology, University of Virginia
Laurence C. Nolan, Professor of Law, Howard University School of Law
Gregory Ogden, Professor of Law, Pepperdine University School of Law
David Popenoe, Professor of Sociology and Co-Director, National Marriage Project, Rutgers
University
Stephen G. Post, Professor of Bioethics, Case Western Reserve University School of Medicine
Stephen B. Presser, Raoul Berger Professor of Legal History, Northwestern University School
of Law
Charles J. Reid, Jr., Associate Professor of Law, University of St. Thomas School of Law
(Minnesota)
Thurston H. Reynolds, Professor of Law, Thomas Goode Jones School of Law, Faulkner
University
Robert E. Rodes, Jr., Paul J. Schierl/Fort Howard Corporation Professor of Legal Ethics, Notre
Dame Law School
Paul H. Rubin, Samuel Candler Dobbs Professor of Economics and Law, Emory University
Ronald J. Rychlak, MDLA Professor of Law and Associate Dean for Academic Affairs,
University of Mississippi School of Law
Mark S. Scarberry, Professor of Law, Pepperdine University School of Law
Susan Shell, Professor and Chair, Department of Political Science, Boston College
Peter Skerry, Professor of Political Science, Boston College and Nonresident Senior Fellow,
Brookings Institution
Stephen F. Smith, Professor of Law and John V. Ray Research Professor, University of Virginia
School of Law
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Steven D. Smith, Warren Distinguished Professor of Law, University of San Diego School of Law
David M. Smolin, Professor of Law, Cumberland Law School, Samford University
Katherine Shaw Spaht, Jules F. and Frances L. Landry Professor of Law, Louisiana State
University Law Center
Andrew C. Spiropoulos, Professor of Law and Director, Center for the Study of State
Constitutional Law and Government, Oklahoma City University School of Law
John Randall Trahan, James Carville Associate Professor of Law, Louisiana State University
Law Center
J. David Velleman, Professor of Philosophy, New York University
Robert K. Vischer, Associate Professor of Law, University of St. Thomas School of Law
(Minnesota)
David M. Wagner, Associate Professor, Regent University School of Law
Linda J. Waite, Lucy Flower Professor in Urban Sociology, University of Chicago
Lynn D. Wardle, Bruce C. Hafen Professor of Law, J. Reuben Clark Law School, Brigham
Young University
Amy Wax, Robert Mundheim Professor of Law, University of Pennsylvania Law School
Margaret J. Weber, Professor and Dean, Graduate School of Education and Psychology,
Pepperdine University
Barbara Dafoe Whitehead, Co-Director, National Marriage Project, Rutgers University
Robin Fretwell Wilson, Professor of Law, University of Maryland School of Law
John Witte, Jr., Jonas Robitscher Professor of Law and Ethics and Director, Center for the
Study of Law and Religion, Emory University School of Law
Page 43
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New York, NY 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
Institute for Marriage and
Public Policy
P.O. Box 1231
Manassas, VA 20108
Tel: (202) 216-9430
info@imapp.org
www.imapp.org
The Institute for American Values is a nonpartisan organization dedicated to strength-
ening families and civil society in the U.S. and the world. The Institute brings together
approximately 100 leading scholars from across the human sciences and across
the political spectrum for interdisciplinary deliberation, collaborative research,
and joint public statements on the challenges facing families and civil society. In all
of its work, the Institute seeks to bring fresh analyses and new research to the atten-
tion of policy makers in government, opinion makers in the media, and decision
makers in the private sector.
About the Institute for Marriage and Public Policy
The Institute for Marriage and Public Policy is a nonprofit, nonpartisan organization
dedicated to high quality research and public education on ways that law and public
policy can strengthen marriage as a social institution. Working with top scholars,
public officials, and community leaders, iMAPP brings the latest research to bear on
important policy questions, seeking to promote thoughtful, informed discussion of
marriage and family policy at all levels of American government, academia, and civil
society.
SER 130
A Report from the Council on Family Law
Dan Cere, Principal Investigator
The Future of Family Law
Law and the Marriage Crisis in
North America
Institute for the Study of Marriage, Law and Culture
SER 131
On the cover: Rejected Copy by Larry Rivers Estate
of Larry Rivers/Licensed by VAGA, New York, NY.
Layout by Josephine Tramontano.
2005, Institute for American Values. No reproduc-
tion of the materials contained herein is permitted
without the written permission of the Institute for
American Values.
ISBN #978-1-931764-08-5
For more information or additional copies, contact:
New York, NY 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
Web: www.americanvalues.org
The Council on Family Law, chaired by Mary Ann Glendon of Harvard Law School,
is an interdisciplinary group of scholars and leaders who have come together to
analyze the purposes and current directions of family law in Canada and the United
States and to make recommendations for the future. The Council is independent and
nonpartisan. It is jointly sponsored by the Institute for American Values, the Institute
for Marriage and Public Policy, and the Institute for the Study of Marriage, Law and
Culture. This Reports Principal Investigator, Dan Cere, teaches ethics at McGill
University in Montreal and directs the Institute for the Study of Marriage, Law and
Culture.
The Council is grateful to the Achelis and Bodman Foundations, the William H.
Donner Foundation, the JM Foundation, the Maclellan Foundation, Arthur and Joann
Rasmussen, and the William E. Simon Foundation for their generous financial support.
The research, editorial, and administrative contributions of Sara Butler and Elizabeth
Marquardt are also deeply appreciated.
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Table of Contents
Members of the Council on Family Law...............................................................................
Executive Summary...............................................................................................................
Introduction: The Marriage and Family Law Crisis...............................................................
How Does Family Law Matter?..................................................................................
The Veil of Incrementalism........................................................................................
Marriage Law in the New World of Close Relationships...................................................
Marriage: The Conjugal View....................................................................................
Marriage: The Close Relationship Model..................................................................
Two Case Studies.......................................................................................................
The American Law Institute Report: Principles of the Law of Family Dissolution......
Beyond Conjugality: The View from Canada............................................................
Critiquing these Reports: Whats Left Out?................................................................
The Future of Family Law: Four Possible Directions............................................................
1. Equivalence Between Cohabitation and Marriage................................................
2. Redefining Marriage as a Couple-Centered Bond.................................................
3. Disestablishment, or the Separation of Marriage and State..................................
4. Why Just Two?........................................................................................................
Parenthood: The Next Legal Frontier....................................................................................
Fragmenting Parenthood...........................................................................................
Conclusion.............................................................................................................................
Recommendations.................................................................................................................
Endnotes................................................................................................................................
4
5
9
10
11
12
12
14
16
16
18
20
21
21
25
27
31
33
37
40
42
43
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Page 4
Members of the Council on Family Law
Iain T. Benson, Centre for Cultural Renewal
David Blankenhorn, Institute for American Values
Margaret Brinig, University of Iowa College of Law
Don S. Browning, University of Chicago Divinity School, Emeritus
Ernesto Caparros, University of Ottawa Faculty of Law, Emeritus
Dan Cere, McGill University (Principal Investigator)
Maura D. Corrigan, Chief Justice, Michigan Supreme Court
John Crouch, Americans for Divorce Reform
Maggie Gallagher, Institute for Marriage and Public Policy
Mary Ann Glendon, Harvard Law School (Council Chair)
Christopher B. Gray, Concordia University
Thomas C. Kohler, Boston College Law School
John E. Murray, Jr., Duquesne University School of Law
David Novak, University of Toronto
David Popenoe, Rutgers University, National Marriage Project
T. Peter Pound, Centre for Cultural Renewal
Leah Ward Sears, Presiding Justice, Supreme Court of Georgia
Carl E. Schneider, University of Michigan Law School
Katherine Shaw Spaht, Louisiana State University Law Center
Lynn D. Wardle, Brigham Young University Law School
Robin Fretwell Wilson, University of Maryland School of Law
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Page 5
FAMILY LAW IS on the front pages of our newspapers and is implicated in
some of our deepest cultural conflicts, from no-fault divorce, to the status of
cohabitation to, most recently, same-sex marriage.
At their core, these ongoing disputes are fueled by competing visions of
marriage and of the role of the state in making family law.
This report on the current state of family law holds up for clear public
view the underlying, dramatically different models of marriage that are
contributing to deep public clashes over the law of marriage, cohabitation,
and parenthood. Obtaining conceptual clarity about marriage and its
meanings will allow family law experts, scholars from other disciplines,
judges, legislators, and the general public to make more informed choices
among competing legal proposals now being advanced in the United States
and Canada.
Two Recent Reports
Recently two highly influential reports have been published by legal
scholars, one in the United States and one in Canada. Both reports are
deeply influenced by a new vision of marriage. Both reports have potentially
profound and far-reaching consequences for social attitudes and practices
concerning marriage, parenthood, and children.
The first report is the Principles of the Law of Family Dissolution, published
in 2002 by the American Law Institute (ALI). This report moves away from
the idea that there can be public standards guiding marriage and parenthood.
Instead, it says that the central purpose of family law should be to protect
and promote family diversity. The report sidelines what it calls traditional
marriage, viewing marriage as merely one of many possible and equally
valid family forms. In the process the report denies the central place of
biological parenthood in family law and focuses instead on the newer idea
of functional parenthood.
The second report is Beyond Conjugality: Recognizing and Supporting
Close Personal Adult Relationships, published in 2001 by the Law Commission
The Future of Family Law
Law and the Marriage Crisis in North America
Executive Summary
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Page 6
of Canada. This report proposes a fundamental reconstitution of contemporary
family law. It argues that the law must go beyond conjugality and focus on the
substance of relationships rather than giving legal recognition to any specific
arrangements such as marriage. It recommends that the traditional conjugal idea of
marriage be put on a level playing field with all other kinds of relationships. It also
argues for redefinition of marriage and its extension to same-sex couples.
The Current Directions of Family Law
These recent reports indicate that family law is headed in one or more of at least
four troubling directions. Some of these changes have already been implemented
in some jurisdictions in the United States and Canada.
Equivalence Between Cohabitation and Marriage
Many now argue that marriage and cohabitation should be treated equally under
the law. This approach denies that some couples might intentionally choose not
to marry. Most dramatically, it would have the law treat two institutions similarly
when social science data show that, when it comes to the well-being of children,
cohabitation is on average much less stable and safe.
Redefining Marriage as a Couple-Centered Bond
In order to accommodate same-sex couples, this approach redefines marriage
as a gender-neutral union of two persons. By doing so it neutralizes the laws
ability to say that children need their mothers and fathers and reifies a new
conception of marriage that is centered on the couple rather than children.
Disestablishment, or the Separation of Marriage and State
Given serious and seemingly irresolvable cultural and political clashes between
competing visions of marriage, increasing numbers of advocates on the left and
the right are calling for disestablishment of marriage, or getting the state out of
the marriage business. This approach denies the states legitimate and serious
interest in marriage as our most important child-protecting social institution and
as an institution that helps protect and sustain liberal democracy.
Why Just Two?
The gendered definition of marriage has already met serious challenges (and
been defeated) in some U.S. and Canadian courts. Challenges to the two-person
definition of marriage are only a matter of time. Legal scholars are now publishing
articles that make this case.
1.
2.
3.
4.
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Page 7
Children: The Missing Piece
What is missing in new proposals in family law is any real understanding of the
central role of marriage as a social institution in protecting the well-being of children.
Marriage organizes and helps to secure the basic birthright of children, when
possible, to know and be raised by their own mother and father. It attempts to forge
a strong connection between men and women and the children resulting from their
bonds. These new marriage proposals call for a fundamental reevaluation of the
relationships between children and their parents. These new reports make clear that
eliminating the notion of biology as the basis of parenthood, and allowing parenthood
to fragment into its plural and varied forms, is necessary if courts are to make family
diversity a legal and cultural reality.
The vision outlined in these two reports frees adults to live as they choose. But
social science data strongly suggest that not all adult constructions of parenthood
are equally child-friendly. Further fragmentation of parenthood means further
fragmented lives for a new generation of children who will be jostled around by
increasingly complex adult claims. This vision also requires more systematic intrusion
into the family and adjudication of its internal life by the state and its courts.
Clashing Models of Marriage
What are the competing models of marriage that are at odds in todays family
law debates?
The Conjugal View
The model of marriage broadly reflected in law and culture until quite recently
can be called the conjugal model. Marriage in this view is a sexual union of
husband and wife who promise each other sexual fidelity, mutual caretaking,
and the joint parenting of any children they may have. Conjugal marriage is
fundamentally child-centered. Theorists of liberal democracy from John Locke
to John Rawls have underlined the important, generative work that conjugal
marriage does for society. This normative model of marriage is under attack in
these recent reports.
The Close Relationship Model
This competing vision of marriage has emerged in recent decades. In it, marriage
is a private relationship between two people created primarily to satisfy the
needs of adults. If children arise from the union, so be it, but marriage and
children are not seen as intrinsically connected.
1.
2.
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Page 8
This second and newer vision has been fueled by a new discipline called close
relationship theory. For close relationship theorists, marriage is simply one kind of
close personal relationship. The structures of the discipline tend to strip marriage
of the features that reflect its importance as a social institution. Marriage is examined
primarily as a relationship created by the couple for the satisfaction of the two
individuals who enter into it.
This view of marriage radically sidelines the main feature that makes marriage
unique and important as a social institution that is, the attempt to bridge sex
difference and struggle with the generative power of opposite-sex unions, including
the reality that children often arise (intentionally and not) from heterosexual unions.
Todays close relationship theorists argue that conjugal marriage can no longer
serve as a useful focus for scholarly research on closely bonded human relationships.
They argue that the traditional marriage-and-family paradigm imposes an ethnocentric
benchmark or ideal. This paradigm, they say, does not speak to the experience
of racial minorities, women, single parents, divorced and remarried persons, gays
and lesbians, and others. Their perspective is finding a new and powerful voice in
todays family law proposals.
Conclusion
Family law today appears to be embracing a big new idea. The idea is that
marriage is only a close personal relationship between adults, and no longer a pro-
child social institution. This idea is fundamentally flawed. It will hurt children and
weaken our civil society. For this reason, there is an urgent need for those outside
the legal discipline to understand and critique the new understandings of marriage
and family life that are driving current legal trends. Marriage and family are too
important as institutions, affecting too many people, for basic decisions about their
legal underpinnings to remain the province of legal experts alone.
If the proposed changes are put in place, there are likely to be important negative
impacts on the lives of everyday people. A close relationships culture fails to
acknowledge fundamental facets of human life: the fact of sexual difference; the
enormous tide of heterosexual desire in human life; the procreativity of male-female
bonding; the unique social ecology of parenting which offers children bonds with
their biological parents; and the rich genealogical nature of family ties and the web
of intergenerational supports for family members that they provide.
These core dimensions of conjugal life are not small issues. Yet at this crucial
moment for marriage and parenthood in North America, there is no serious intel-
lectual platform from which to launch a meaningful discussion about these elemental
features of human existence. This report on the state of family law seeks to open
that debate.
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Page 9
Introduction: The Marriage and Family Law Crisis
FAMILY LAW IS HOT. It is on the front pages of our newspapers and is implicated in
some of our deepest cultural conflicts, from no-fault divorce to the status of
cohabitation to, most recently, same-sex marriage.
Family law now operates in a global context with legal
scholars in one nation often influencing their peers elsewhere.
Because marriage and the family are pervasive social institutions,
touching the lives of all citizens, changes in family law can
generate unusually intense social discomfort. John Dewar, the
dean of law at Griffith University in Australia, puts it this way:
There are few areas of law that generate as much controversy
and disagreement as family law. Its something potentially that
affects us all, in which we all feel we have a stake and of which
some of us have had direct experience. Indeed, there are probably few areas of law
that affect so many people so directly in their everyday lives.
1
Legal theory about the family, he notes, has become a confused and tangled
terrain of conflicting ideas and tendencies.
2
The purpose of this report is to bring conceptual clarity into the confused and
tangled terrain of the family law debate. Here is our central thesis: the ongoing
disputes in family law are centrally about competing visions of marriage. While
at the far ends of a conceptual divide lie a bewildering variety of specific new
proposals (same-sex marriage, covenant marriage, de facto parenting, cohabitation,
constitutional amendments to define marriage, and more) these disputes begin with
and are fueled by dramatically different concepts of marriage and of the role of the
state in making family law.
The competing visions of marriage and family contained in family law are
important. Because marriage is a public, legal status, the states vision of marriage
has unusual social power. In regulating marriage, the state not only defines the
rights of individuals and couples but also can and does command other institutions
of civil society (corporations, faith communities, and even private individuals) to
treat married couples differently because they are married.
Yet the meanings of marriage at stake in these debates are often not very clear.
In part, as we shall see, this lack of clarity stems from the fact that the laws
characteristic method, incrementalism, tends to obscure ultimate consequences. In
part it is because the social meanings of the word marriage, and the underlying
reality it denotes, are in play in our society as they have seldom been before. The
competing visions of marriage at the heart of the family law debate are deeply
incompatible the adoption of one model of marriage moves us in a very different
The ongoing disputes in
family law are centrally
about competing visions
of marriage.
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Page 10
direction than its alternative. But unless the conceptual issues at stake are clarified,
this problem is not obvious to most observers, in part because most of us in North
America today have been influenced in our marriage dreams by both of these
visions of marriage.
Further, the stakes in the family law debates have been left unclear because
some champions of this new marriage model appear to be reluctant for tactical
reasons to explain the ultimate consequences of adopting their proposals, while
many advocates of our marriage traditions have been less than articulate about what
it is they seek to uphold or why the legal understanding of marriage matters.
Rights talk can obscure as much as it reveals. In particular, the portrayal of
certain legal reforms as advancing state neutrality between the moral positions of
individuals, or as increasing individual liberty in a straightforward way, obscures the
reality of what is being proposed: a new substantive model of marriage endorsed
and promoted by law. The shift to unilateral divorce, for example, does not merely
make the state more neutral regarding divorce, nor does it merely increase indi-
vidual liberty. Unilateral divorce, as a legal institution, increases the freedom of
individuals to divorce by reducing their capacity to make enforceable marriage
contracts with each other; it shifts legal power in divorce negotiations from the
spouse who clings to the marriage vow to the spouse who wishes to end it. Some
of us may view changes such as unilateral divorce as necessary accommodations to
social change. Some of us may view them negatively, and as ripe for reform. But we
all must recognize that such changes are not neutral or merely freedom-enhancing.
They are powerful interventions by government into a key social institution and
thus worthy of sustained and intelligent public debate.
A major goal of this essay is to hold up for clear public view these underlying,
competing models of marriage that are contributing to deep public clashes over the
law of marriage, cohabitation, and parenthood. We hope that obtaining conceptual
clarity about marriage and its meanings will allow family law experts, scholars,
judges, legislators, and the general public to make more informed choices among
competing legal proposals.
How Does Family Law Matter?
Laws do more than distribute rights, responsibilities, and punishments. Laws
help to shape the public meanings of important institutions, including marriage
and family. The best interdisciplinary studies of institutions conclude that social
institutions are shaped and constituted by their shared public meanings. According
to Nobel Prize winner Douglass North, institutions perform three unique tasks. They
establish public norms or rules of the game that frame a particular domain of
human life. They broadcast these shared meanings to society. Finally, they shape
social conduct and relationships through these authoritative norms.
3
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The courts today have become major sites for reconstructing the public meanings
of family, marriage, permanence, and parenthood. Legal theorists of diverse ideo-
logical stances acknowledge the impact of family law on marriage and family life.
Harry Krause argues that the law has deeply affected (and helped to affect) family
behavior over time. Moreover, is it not the role of law to help shape and channel our
future in this most important playground of human existence?
4
Another legal scholar argues: There is no part of modern
life to which law does not extend. The rule of law shapes our
experience of meaning everywhere and at all times. It is not
alone in shaping meaning, but it is rarely absent.
5
The Chief
Justice of the Supreme Court of Canada concurs: The rule of
law exerts an authoritative claim upon all aspects of selfhood
and experience in a liberal democratic society. Some such
claims are made by the institutional structures of the law.
Others are ancillary claims arising from a diffused ethos of legal
rule that influences local, community, and familial structures.
6
William Eskridge, a Yale law professor and a prominent architect of same-sex
marriage strategy, argues that law cannot liberalize unless public opinion moves,
but public attitudes can be influenced by changes in the law.
7
Feminist legal theorist
Martha Fineman, who urges the abolition of marriage as a legal category, says that
institutions such as the family are actually created and constituted as coherent
institutions through law. Their very existence as objects of state regulatory concern
comes into being through law. State policies can profoundly affect the form and
functioning of the family.
8
The Veil of Incrementalism
Yet to the layperson, the family law debate is often highly confusing, in part
because of the laws characteristic language and method of incrementalism. Legal
theorists in the ivory tower may tout broad, sweeping changes, but quite often these
changes are enacted by courts incrementally, through individual cases and the
reshaping of discreet legal categories. There is nothing nefarious or inappropriate
about incrementalism as a legal method. But in the current family law context, this
legal process can obscure deep and lasting changes that end up shaping peoples
everyday lives in unexpected ways.
Make no mistake: incremental changes do not mean unimportant changes.
William Eskridge explains the tactical advantages of advocating only incremental
changes to the law. Though he supports same-sex marriage, for strategic reasons,
he advises against any direct push for legal redefinition of marriage.
9
He writes that
a main benefit of incrementalism is that it leaves resulting changes largely immune
from direct public criticism and debate.
10
He points to Holland and other European
Family law is
reconstructing the public
meanings of marriage and
parenthood.
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countries which, in a fairly short amount of time, have ushered in a variety of state-
sanctioned relationships that now compete with marriage. According to Eskridge,
these equality practices help to denormalize marriage.
11
Marriage and family are too important as social institutions, affecting too many
people, especially children, for basic decisions about their legal underpinnings to
remain the private province of legal experts alone. There is an urgent need for the
involvement of disciplines besides the law to identify, understand, and critique the
legal theories of marriage and family life that are helping to shape new trends.
Marriage Law in the New World of Close Relationships
WHAT ARE THE models of marriage now in play in family law in North America?
Marriage: The Conjugal View
The model of marriage broadly reflected in law and culture until quite recently
can be called the conjugal model. Marriage in this view is a sexual union of husband
and wife, who promise each other sexual fidelity, mutual caretaking, and the joint
parenting of any children they may have. In essence, conjugality refers to the sex-
bridging, procreative dimension of marriage.
Conjugal marriage has several characteristics. First, it is inherently normative.
Conjugal marriage cannot celebrate an infinite array of sexual or intimate choices
as equally desirable or valid. Instead, its very purpose lies in channeling the erotic
and interpersonal impulses between men and women in a particular direction: one
in which men and women commit to each other and to the children that their sexual
unions commonly (and even at times unexpectedly) produce.
As an institution, conjugal marriage addresses the social problem that men and
women are sexually attracted to each other and that, without any outside guidance
or social norms, these intense attractions can cause immense personal and social
damage. This mutual attraction is inherently linked to the reproductive labor that
is essential to the intergenerational life of all societies, including modern liberal
societies.
12
The default position for men and women attracted to the opposite sex,
absent strong social norms, is too many children born without fathers, too many
men abandoning the mothers of their children, and too many women left alone to
care for their offspring. If law and culture choose to do nothing about sexual
attraction between men and women, the passive, unregulated heterosexual reality
is multiple failed relationships and millions of fatherless children.
Marriage, like the economy, is one of the basic institutions of civil society. It
provides an evolving form of life that helps men and women negotiate the sex
divide, forge an intimate community of life, and provide a stable social setting for
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their children. The seminal theorists of liberal democracy from John Locke to John
Rawls have always underlined the generative work of this conjugal form of life.
John Lockes The Second Treatise on Government underlines the core social purpose
of marriage for a liberal polity.
13
John Rawls argues that the family as a basic
institution is geared to the orderly production and reproduction of society and of
its culture from one generation to the next.
14
From this basic human reality arises the need for the wider
society to direct immense energy into helping manage the
reality of individual mens and womens desire for sex and
intimacy in ways that ultimately protect them, their children,
and the interests of the community. As a highly visible social
and legal institution, marriage provides both the structure and
the hope men and women need, so that such a resolution of
male and female sexual interests is not only possible but attainable. As we shall see,
this normative function of marriage is the one that is most directly under attack by
the authors of the American Law Institute report.
Another characteristic of conjugal marriage is that it is fundamentally child-
centered, focused beyond the couple towards the next generation. Not every married
couple has or wants children. But at its core marriage has always had something to
do with societies recognition of the fundamental importance of the sexual ecology
of human life: humanity is male and female, men and women often have sex,
babies often result, and those babies, on average, seem to do better when their
mother and father cooperate in their care. Conjugal marriage attempts to sustain
enduring bonds between women and men in order to give a baby its mother and
father, to bond them to one another and to the baby.
15
A great deal of social science evidence now confirms the traditional understanding
of the law. Children do better, on average, when raised by their own mother and
father in a harmonious relationship. A Child Trends research brief summed up the
new scholarly consensus:
Research clearly demonstrates that family structure matters for children, and the
family structure that helps the most is a family headed by two biological parents in
a low-conflict marriage. Children in single-parent families, children born to unmarried
mothers, and children in stepfamilies or cohabiting relationships face higher risks
of poor outcomes.... There is thus value for children in promoting strong, stable
marriages between biological parents.
16
Of course, marriage always has and still does many other important things. It
protects and supports the man and woman as they grow older and provides sexual
pleasure and comfort even when children do not result. It also helps to organize
property, inheritance, and more. But the core insight fueling the conjugal view of
Conjugal marriage is
fundamentally
child-centered.
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marriage is this one: if human beings did not reproduce sexually, creating human
infants with their long period of dependency, marriage would not be the virtually
universal human social institution that it is.
17
Marriage: The Close Relationship Model
In recent decades, however, a competing vision of marriage has emerged. In this
new view, marriage is seen primarily as a private relationship between two people,
the primary purpose of which is to satisfy the adults who enter it. Marriage is about
the couple. If children arise from the union, that may be nice, but marriage and
children are not really connected.
18
In a moment we shall see how the close relationship model has begun to dom-
inate family law. To understand the features of this new model of marriage most
clearly, the place to start is with its contemporary theoreticians, who are primarily
psychologists and, to a lesser extent, sociologists.
As a discipline, close relationship theory emerged prominently in the 1980s,
spearheaded by a diverse group of scholars and academic associations, such as the
International Society for the Study of Personal Relationships and the International
Network on Personal Relationships. This new disciplinary framework now has two
major journals The Journal of Social and Personal Relationships (1984-) and
Personal Relationships (1994-) as well as a number of major publication series,
including the Sage Series on Close Relationships and Advances in Personal
Relationships.
19
Close relationship theory focuses primarily on the nature of relationships
between two people (or what is called dyadic relationships). For close relationship
theorists, marriage becomes a subcategory of this core concept; marriage is simply
one kind of close personal relationship. The structures of the discipline tend to strip
marriage of the features that reflect its status and importance as a social institution.
Marriage is examined primarily as a relationship created by the couple for the
satisfaction of the two individuals who are in it.
Of course close relationship theorists are not operating in a vacuum. Close
relationship theory reflects real trends in society that are making marriage less
connected to its classic purposes as a social institution. For example, while marriage
remains a wealth-generating institution,
20
other institutions of society (such as the
market and government) have taken over large parts of the economic and social
insurance functions marriage once had. While marriage remains a socially preferred
context for sexual intercourse, the sexual revolution (including the growth in social
acceptance for couples living together) has reduced the stigma for those who have
sex outside of marriage. While marriage continues to have considerable connection
to children in the public mind, large increases in unmarried childbearing have
increased social acceptance of unwed parents and their children. In addition, high
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rates of divorce and the personal longings for a soul mate are changing the way
young people think about marriage.
21
Anthony Giddens, probably Britains most distinguished sociologist, writes that
the close relationships approach to human sociality is reconfiguring popular as well
as academic culture, bringing about a new grammar of intimacy. He believes that
we are moving from a marriage culture to a culture that celebrates
pure relationship.
22
A pure relationship is one that has been
stripped of any goal beyond the intrinsic emotional, psycho-
logical, or sexual satisfaction which the relationship currently
brings to the individuals involved.
As an academic field, close relationship theory insists on
bringing a common theoretical and methodological approach
to the study of all sexually based primary relationships.
23
Similar values and processes are said to govern the initiation,
maintenance, and dissolution dynamics of all close relationships. The existence (or
lack) of a legally recognized bond such as marriage is a secondary consideration.
In one sense, there is nothing particularly novel about the idea of marriage as a
close personal relationship. Classical Western perspectives on marriage have always
stressed that marriage must be grounded in committed friendship. Close relationship
theory can help us to understand this dimension of marriage.
But it is also clear that once marriage is viewed as just another dyadic relationship,
the distinctive features grounding the conjugal understanding of marriage are simply
edited out of the discourse.
24
That which is distinctive about marriage is not allowed
to enter the discussion.
25
What gets left out? The answer is the main feature that makes marriage unique
the attempt to bridge sex difference and the struggle with the generative power
of opposite-sex unions. Conjugal marriage attempts to confront the fact that hetero-
sexual sex acts can and often do produce children. This reality raises a set of concerns
of critical importance to children, couples, and the species concerns that close
relationship theory is not prepared to take on.
Instead, many close relationship theorists maintain that what was once called
the nuclear conjugal family can no longer serve as a useful focus for research on
closely bonded human relationships.
26
They argue that viewing sexual and procreative
life through the lens of conjugal marriage constitutes an external, ideological
perspective that distorts objective analysis. The traditional marriage-and-family
paradigm imposes an ethnocentric benchmark or ideal. This paradigm, they say,
does not speak to the experience of racial minorities, women, single parents,
divorced and remarried persons, gays and lesbians, and others.
27
In the late 1980s, leading close relationship theorists recommended that legal
theorists expand their thinking about sexually bonded intimacy beyond the confines
of the family to include all close relationships.
28
And so, as we shall see, they have.
In the new view, marriage
is to satisfy adult needs.
Marriage and children
are not connected.
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Two Case Studies: The American Law Institutes Principles of the Law of
Family Dissolution and the Law Commission of Canadas Beyond Conjugality
The clearest evidence of the intellectual dominance of the close relationship
model of marriage in family law discourse can be found in two highly influential
law reports, published within a short time of each other, one in the United States
and one in Canada.
29
The first report is the Principles of the Law of Family Dissolution, published in
2002 by the American Law Institute (ALI). The ALI usually publishes what it calls
restatements of the law. These influential reports are used by academics, attorneys,
and judges to help make sense of laws that may not have been decided yet by a
states own case law, and courts will sometimes adopt their restatements. It is rare
for the ALI to take on family law and rarer still for them to suggest changes to
existing law as they have in the Principles of the Law of Family Dissolution
rather than simply restating the law.
30
The second report is Beyond Conjugality: Recognizing and Supporting Close
Personal Adult Relationships, published in 2001 by the influential Law Commission
of Canada. The Law Commission of Canada is appointed by the Canadian federal
government as an independent federal law reform agency that advises Parliament
on how to improve and modernize Canadas laws.
Both reports come from legal organizations that have shaped the development
of laws in their respective nations in the past. These two new reports are a good
vantage point from which to analyze and view the direction of conventional legal
thought on marriage and family law in North America.
We have no reason to suppose that the authors of these reports have necessarily
read the work of leading close relationship theorists. But the underlying concepts
of marriage becoming predominant in the culture and developed most clearly by
close relationship theorists exert a powerful influence on these leading theorists of
family law. Both of these reports push family law in profoundly new directions
whose purposes and aims are sometimes far removed from (and often contrary to)
family laws former public purposes that included protecting marriage and the best
interests of children.
The American Law Institute Report: Principles of the Law of Family Dissolution
The ALI report seeks to change existing family law in a number of key areas.
First, the report moves away from the notion of public standards for marriage and
parenthood. Instead, it emphasizes individualized decision-making and voluntary
adult arrangements through prenuptial and marital agreements, parenting plans,
and separation agreements.
31
Public standards of the sort that once influenced family
law are, in this report, subject to relentless critique for their failure to promote
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diversity and their tendency to impose social stereotypes.
32
Such standards for
familial life run counter to the commitment this society avows towards family
diversity.
33
The authors warn that even when a determinate standard conforms to
broadly held views about what is good for children, it can intrude just as inde-
terminate standards do on matters concerning a childs upbringing that society
generally leaves up to parents themselves, and standardize
child-rearing arrangements in a way that unnecessarily curtails
diversity and cultural pluralism.
34
Professor Katherine Bartlett, one of the reports three main
drafters (or reporters), said that the passion that drives her
work is
the value I place on family diversity and on the freedom of indi-
viduals to choose from a variety of family forms. This same value
leads me to be generally opposed to efforts to standardize families into a certain
type of nuclear family because a majority may believe this is the best kind of family
or because it is the most deeply rooted ideologically in our traditions.
35
Instead, Bartlett wants to embrace equally all forms of intimate relationships.
She and her peers aim to de-privilege marriage by treating cohabiting and other kinds
of relationships just like marriage. In this view, protection of diverse constructions of
intimacy becomes the central public task of family law.
Second, the ALI proposes to sideline what it calls traditional marriage, resituating
marriage as merely one of many possible and equally valid family forms, along with
cohabiting couples, singles, gay and lesbian families, and others.
36
The report presses
toward full legal marriage rights for same-sex couples by seeking to place same-sex
couples, cohabiters, and married people all on the same level playing field when they
dissolve their unions. The only sustained discussion of the characteristics of conju-
gality occurs in the chapter devoted to domestic partnerships. The report pushes aside
the legal formality of marriage in order to refocus family law on relationships that
may be indistinguishable from marriage.
37
The social ecology of male/female bonding
does not appear as one of the thirteen indicia of a marriage-like relationship.
38
This
new understanding of marriage seeks to replace conjugality with relationship or
couplehood as the central organizing principle of family law. According to the ALI
report, this emphasis on the character of the relationship and the recognition of a
diversity of marriage-like relationships draws its inspiration from Canada.
39
Third, the reports recommendations shift the focus from biological parenthood
to functional parenthood (with functional parenthood meaning the day-to-day
work of raising children). The report argues that the traditional biological view of
parenthood as an exclusive, all-or-nothing status fails to grapple with diverse
constructions of parenting in contemporary society.
40
Protection of diversity
becomes the central public
task of family law.
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Finally, the report is reluctant to define some of the key institutions marriage,
family, and parenthood that it targets for legal reform. Yet despite the authors
reluctance to pin themselves down, a discernible vision of human relationships
percolates through this document. In their view, marriage and parenting are rela-
tionships with very high degrees of plasticity and indeterminacy. They are only
given meaning by the choices of diverse individuals in a wide array of relationships.
In this view, marriage is infinitely malleable. Only the vaguest definitions are
possible. Marriage, the authors venture, is an emotional enterprise, with high
returns and high risks.
41
It is a function of individual commitments and accommo-
dations: Different couples arrive at different accommodations in their relationships,
and some depart from the social conventions. Intimate relationships often involve
complex emotional bargains that make no sense to third parties with different needs
or perceptions.
42
In the view of the ALI authors, marriage has almost no real public
content. Instead, marriage is the relational play of highly subjective, diverse con-
structions of intimacy and love.
The implications of this constructivist view of marriage surface in the documents
opening discussions of no-fault divorce. In a constructivist world of marital intimacy,
it is all but impossible to assign fault when intimacy breaks down. Without anchors
of meaning for marriage, fault becomes an almost empty concept. Even the word
cause loses meaning; there can be no such thing as an objective cause of a
divorce. The authors of the ALI report tell us that some individuals tolerate a spouses
drunkenness or adultery and never resort to divorce. Others, they say, may seek a
divorce if a spouse grows fat or spends long hours in the office.
43
When this happens,
they ask, is the divorce caused by one spouses offensive or unattractive conduct, or
by the others unreasonable intolerance? The reports answer is: who can say? The
complexity of individual choices makes it impossible to determine cause.
44
The ALI
reporters warn that any attempt to do so necessarily involves a sleight of hand, since
it requires a moral assessment that amounts to rewarding virtue and punishing sin.
45
Aside from the most minimal of standards of conduct for example, it bars
domestic violence the report concludes it is nearly impossible to determine after
the fact what was right or wrong about spousal conduct in a marriage that is ending.
Beyond Conjugality: The View from Canada
Beyond Conjugality proposes a fundamental reconstitution of contemporary
family law. As its title says, the report argues that the law must go beyond conju-
gality and focus on the substance of relationships rather than giving legal recog-
nition to any specific arrangements, such as marriage. It contends that govern-
ments should recognize and support all significant adult close relationships that
are neither dysfunctional nor harmful.
46
The only clear standards for relational
behavior are the offside zones delineated by criminal law.
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The authors of Beyond Conjugality define a close personal relationship,
offering a fluid definition in which marriage is firmly placed as just one of the
varied relationships adults might form:
The focus in this Report is on interdependent relationships between adults: those
personal relationships that are distinguished by mutual care and
concern, the expectation of some form of an enduring bond,
sometimes a deep commitment, and a range of interdependen-
cies emotional and economic that arise from these fea-
tures. These economically and emotionally interdependent
relationships are one of the very foundations of Canadian
social life. They may or may not involve parenting responsibil-
ities that certainly influence the range of interdependencies
created. They may or may not involve sexual intimacy. They
may or may not be characterized by deep economic interde-
pendency. Governments need to ensure that the law respects the diverse choices
that Canadians make.
47
Two legal scholars who contributed to the preparatory work for this report have
argued: The role of the law ought to be to support any and all relationships that
further valuable social goals, and to remain neutral with respect to individuals
choice of a particular family form or status.
48
In Beyond Conjugality, the Law Commission of Canada spells out the full logic
of these legal ideas and trends. It recommends that legal reformers eliminate the
special status accorded to marital relationships. In this view, conjugality is too
restrictive, since it excludes whole categories of interpersonal relationships that
exhibit patterns of interpersonal, emotional, and economic interdependence that
are equivalent to, or in some cases surpass, the commitments of sexualized close
relationships between heterosexuals. It urges the federal government to provide a
legal framework that would capture the relational equality of all close personal
relationships.
49
The main direction of the Beyond Conjugality report is toward the complete
elimination of the category of marriage from law. In a somewhat confusing maneuver,
however, the report concludes by proposing major and significantly contradictory
reforms. The bulk of the report lays out a new legal framework for dealing with
close adult relationships that would replace the traditional conjugal category of
marriage with one that puts all relationships on an equal playing field. Then, in the
last chapter, the report does an about-face to reaffirm the legal institution of marriage
while arguing for its redefinition and extension to same-sex couples.
The closing argument for the redefinition of marriage in Beyond Conjugality has
stolen the legal and political stage in Canada, laying out the legal template for the
Marriage becomes
just one of the many
varied relationships
adults might form.
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major Canadian court decisions in favor of the redefinition of marriage. This template
also appears in the proposed new Civil Marriage Act (Bill C-38) which redefines
marriage as a union of two persons.
Critiquing These Reports: Whats Left Out?
In these legal reconstructions, what drops out of view? Quite a lot, it turns out.
Marriage serves a number of critical purposes in human culture. It addresses the fact
of sexual difference between men and women, including the unique vulnerabilities
that women face in pregnancy and childbirth. It promotes a public form of life and
culture that integrates the goods of sexual attraction, interpersonal love and com-
mitment, childbirth, child care and socialization, and mutual economic and psycho-
logical assistance. It provides a social frame for procreativity. It fosters and maintains
connections between children and their natural parents. It sustains a complex form
of social interdependency between men and women. It supports an integrated form
of parenthood, uniting the biological (or adoptive), gestational, and social roles that
parents play.
These are large issues. Yet in these reports, with a wave of the constructivist
wand, these long-standing human concerns are systematically displaced from their
formerly central position in family law. In their place the authors are recommending
the legal imposition of a new model of close personal relations.
Despite the fact that sex-difference and opposite-sex attraction and bonding are
fundamental features of human existence, and that marriage is an institution that
attempts to work within this vast and complex domain, in contemporary legal
debates in the U.S. and Canada, these core issues are being pushed off the table.
50
Legal scholars make much of the fact that theorists have discovered no difference
between married and unmarried couples, or homosexual and heterosexual relation-
ships, when it comes to the basic dynamics of love, compatibility, and intimacy. But
the authorities cited to support this thesis are strong proponents of close relationship
theory.
51
The problem with close relationship theory is that it is fine-tuned to discover
exactly what it predicts, namely, that unmarried same-sex and opposite-sex couples
reveal the same patterns of interpersonal intimacy evident in married couples. The
core relational values of intimacy, commitment, interdependence, mutual support,
and communication get cranked out as the exemplary values for all close relationships,
including marriage. Certainly, good marriages partake of these core relational values,
but marriage as an institution encompasses much more than this limited set of inter-
personal concerns. Understanding marriage only as a close personal relationship,
but nothing more, leaves our understanding flat and impoverished.
The kinds of values or patterns cited by close relationship theorists turn out to
be found in many types of relationships, not just ones in which the two people have
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sex. Friendships, sibling relationships, and parent-child attachments also partake of
values such as commitment, mutual support, and the rest. By talking about relation-
ships in terms of generic interpersonal intimacy, close relationship theorists bracket
out, before the discussion even begins, the specificity of marriage as a form of life
struggling with the unique challenges of bonding sexual difference and caring for
children who are the products of unions.
52
Today, contemporary family law theorists are bent on ham-
mering this new theory into law, usually using the avenue of
constitutional law. What is striking is the breathless speed of
these developments in the absence of any real scholarly or
public debate. A particular school of thought openly aimed at
re-conceptualizing marriage first took root in the academy in
the 1980s. By the late 1990s it had come to dominate fashionable
academic theorizing on sexual intimacy. That school of thought
is successfully urging family law scholars to think in radically
new ways about family law. Much of the new thinking centers on ways to transform
family law from its historic role as the protector of marriage into something very
close to its antagonist.
What is likely to happen next?
The Future of Family Law: Four Possible Directions
IF THE CLOSE relationship model of marriage triumphs, where is family law head-
ed? One or more of at least four troubling outcomes for family law is likely.
The First Direction: Equivalence Between Cohabitation and Marriage
The first direction that family law might take is to reduce the distinctions
between marriage and cohabitation by treating more and more cohabiting couples
as if they were married. After all, if marriage is just a word that means close intimate
relationship, what is the legal justification for treating people differently based on
a wedding? In some jurisdictions, this transition is already well established.
Since the characteristic features that are distinctive to marriage (including shared
social norms about roles and expectations and the public vow before community,
God, and the law) have already been ruled off the table by close relationship theory,
today these features tend to be ignored by legal experts in favor of those aspects
that make marriage and cohabitation similar.
Thus, the American Law Institute report argues that the movement toward
equivalence should be harmonized and universalized. The rights and benefits
regarding partners should be based on the character of their social relationship,
What is striking
is the speed of these
developments in the
absence of any public
debate.
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Page 22
not their marital status.
53
(The possibility that marriage might change the character
of the spouses relationship is not considered.) The ALI report treats the failure to
marry as insignificant and meaningless:
As the incidence of cohabitation has dramatically increased it has become
increasingly implausible to attribute special significance [to] the parties failure to
marry. Domestic partners fail to marry for many reasons. Among others, some have
been unhappy in prior marriages and therefore wish to avoid the form of marriage,
even as they enjoy its substance with a domestic partner. Some begin in a casual
relationship that develops into a durable union, by which time a formal marriage
ceremony may seem awkward or even unnecessary. Failure to marry may reflect
group mores. Some ethnic and social groups have a substantially lower incidence
of marriage and a substantially higher incidence of informal domestic relationships
than do others. Failure to marry may also reflect strong social or economic inequality
between the partners, which allows the stronger partner to resist the weaker
partners preference for marriage. Finally there are domestic partners who are not
allowed to marry each other under state law because they are of the same sex.
In all of these cases the absence of formal marriage may have little or no bearing
on the intentions of the parties, the character of the parties domestic relationship,
or the equitable considerations that underlie claims between lawful spouses at the
dissolution of a marriage. Normatively, Chapter 6 takes the view that family law
should be concerned about relationships that may be indistinguishable from marriage
except for the legal formality of marriage.
54
Because the goal of the ALI is to treat all marriage-like relationships similarly,
it is forced to define not marriage, but domestic partnership. This concept, rather
than marriage, becomes the underlying social reality to which the law must conform.
The ALI report defines domestic partnerships by a set of generic relationship
characteristics that mark a life together as a couple.
55
As more cities in the United States establish domestic partnership registries,
this term is gaining recognition in law as a kind of midway status between marriage
and singleness. Increasing numbers of private corporations and union agreements
use any valid government recognition of a relationship as the basis for providing
contractually guaranteed benefits to unmarried couples, and some permit couples
simply to file affidavits affirming that they are domestic partners as the condition
for receiving benefits such as health insurance. Overall, though, the argument that
cohabiters have a general right to be treated as married has made relatively little
headway in the United States, except in the case of same-sex couples who can
legally marry in Massachusetts.
Canadian courts, by contrast, have been quite receptive to the idea that treating
couples differently based on marital status constitutes unjust discrimination. Like the
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ALI report, Canadian courts have cited as determinative the characteristics that are
often common to both married and non-married intimacy,
56
including common
shelter, sexual and personal behavior,
57
mutual service, social life together, societal
perceptions of the couple, economic support, and parenting.
Although Canadian courts have appealed to conjugal characteristics in order
to establish the fundamental similarity of marital and non-
marital forms of intimate life, they have also demonstrated a
surprising awareness of the dangers of doing so. For ironically,
the argument that all marriage-like relationships should be
treated alike still requires the law to define which relation-
ships are worthy of being treated as marriage-like by the
courts, and continues to use marriage as the basic social
norm for making this distinction. In other words, when courts
replace marital norms with close relationships norms, they
still leave the law in the position of promoting certain normative concepts of
conjugality.
Canadian courts have mostly dealt with this problem by calling attention to the
fluidity and plasticity of the standards they have created. In Macmillan-Dekker v.
Dekker, Supreme Court Justice Bertha Wilson writes that characteristics such as shar-
ing a home or having a sexual relationship are merely indicia of a conjugal/
spousal relationship. Wilson stresses their malleable nature:
I conclude that there is no single, static model of a conjugal relationship, nor of
marriage. Rather, there are a cluster of factors which reflect the diversity of con-
jugal and marriage relationships that exist in modern Canadian society. Each
case must be examined in light of its own unique, objective facts the seven
factors [that define conjugality] are meant to provide the Court with a flexible
yet objective tool for examining the nature of relationships on a case-by-case
basis.
58
In a dissenting opinion in 1993, Justice Claire LHeureux Dub anticipated later
legal developments in arguing that these conjugal characteristics should not reinforce
a normative model of conjugality:
The use of a functional approach would be problematic if it were used to establish
one model of family as the norm, and to then require families to prove that they
are similar to that norm. It is obvious that the application of certain variables could
work to the detriment of certain types of families. By way of example, the
requirement that a couple hold themselves out to the public as a couple may not,
perhaps, be appropriate to same-sex couples, who still often find that public
acknowledgement of their sexual orientation results in discriminatory treatment.
59
If marriage is just a close
relationship, why treat
people differently
based on a wedding?
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Page 24
To avoid the risks of normativity, Justice Peter Cory, writing for the majority in
M. v. H., suggests an infinitely plastic definition of conjugality:
Certainly an opposite-sex couple may, after many years together, be considered to
be in a conjugal relationship although they have neither children nor sexual
relations. Obviously the weight to be accorded the various elements or factors to
be considered in determining whether an opposite-sex couple is in a conjugal
relationship will vary widely and almost infinitely. The same must hold true of
same-sex couples. Courts have wisely determined that the approach to determining
whether a relationship is conjugal must be flexible. This must be so, for the relationships
of all couples will vary widely.
60
[emphasis added]
The heart of the equivalence approach is the idea that marital status is a mere
formality. Similar relationships should be treated similarly, regardless of whether or
not a marriage ceremony ever took place.
There are at least two serious problems with the equivalence approach. First, it
runs roughshod over the long-established principle that marriage requires consent.
Cohabiters are now to be locked by government into a marital regime whether they
like it or not.
61
Indeed, for some legal scholars, coercion is precisely the point. According to
Roderick Macdonald, the former president of the Law Commission of Canada, self-
ascription that is, the couples understanding of the relationship is of limited
value in determining a couples legal status, since any such definition can be
effectively blocked by one non-consenting partner in the relationship:
No matter how broadly a concept is defined by law, if the status it confers depends
only on self-ascription, many of those intended to be the beneficiaries of the status
will be excluded. Suppose for a moment that the law were amended to provide that
persons of the same sex could get married, and that, were they to do so, the full
panoply of rights and responsibilities attaching to the status of marriage would
apply. This opening up of the concept of marriage might well address many of the
legal concerns now expressed by same-sex couples. But, just as for heterosexual
couples, it would be of no help to a partner in a common-law same-sex relationship
who wants to marry but whose partner does not.
62
But for many who advocate equivalence as part of a broader embrace of family
diversity, the coercive aspects of this legal regime remain troubling. In the Nova Scotia
v. Walsh decision, for example, the Canadian courts abruptly reversed years of legal
movement in the direction of equivalence. Instead, the Court suddenly insisted on the
need to respect individuals freedom to choose, or not to choose, more committed
forms of partnership. Quoting an earlier opinion of Justice LHeureux-Dub, Nova
SER 154
Page 25
Scotia v. Walsh argues that the decision to marry or, alternatively, not to marry,
depends entirely on the individuals concerned. According to the judges, family
means different things to different people all of them equally valid and all of them
equally worthy of concern, respect, consideration, and protection under the law. The
state should not impose a marital regime retroactively.
63
The second problem with the equivalence approach is that
social science evidence by and large fails to support its central
contention, which is that marriage is just a formality. Instead, the
differences between marital and cohabiting relationships appear
to be real and significant, at least in the United States, where
most of the research has been conducted.
64
A group of twelve
diverse U.S. family scholars, for example, recently concluded:
Cohabitation is not the functional equivalent of marriage. As a
group, cohabiters in the United States more closely resemble sin-
gles than married people. Children with cohabiting parents have outcomes more
similar to the children living with single (or remarried) parents than children from
intact marriages. Adults who live together are more similar to singles than to mar-
ried couples in terms of physical health and emotional well-being and mental
health, as well as in assets and earnings. Couples who live together also, on aver-
age, report relationships of lower quality than do married couples with cohab-
iters reporting more conflict, more violence and lower levels of satisfaction and
commitment. Even biological parents who cohabit have poorer quality relationships
and are more likely to part than parents who marry. Cohabitation differs from mar-
riage in part because Americans who choose merely to live together are less com-
mitted to a lifelong relationship.
65
Moreover, three-quarters of children born to cohabiting couples are likely to see
their parents split up by the time they are sixteen years old.
66
Whether the standard
is relationship durability or relationship satisfaction or tangible benefits to adults or
the well-being of children, cohabitation is not the same thing as marriage. The
equivalence regime is unjust because it treats couples who are unwilling to make
a marriage commitment as if they have done so. It is unwise because the law
communicates to younger people the demonstrably false idea that marital status
makes no difference for the well-being of a couple or their children.
The Second Direction: Redefining Marriage as a Couple-Centered Bond
A second direction marriage law might take is substantive redefinition. In this
approach, the law would continue to allow distinctions to be made between married
couples and cohabiting couples, with marriage remaining a distinct legal status. But
Scholarship fails
to support the central
contention of the
equivalence approach.
SER 155
Page 26
the meaning of marriage would be redefined by courts, primarily on behalf of same-
sex couples, as a commitment between any two people. The new legal definition
strips all remaining remnants of sex, gender, and procreativity from the public,
shared meaning of marriage. In contrast to the equivalence view, once full access
to marriage is granted irrespective of sex, any legal benefits to domestic partnerships
should in theory be rolled back.
67
(This approach has been called the Levelling
Position.)
68
Marriage becomes the only legally recognized close relationship.
69
To privilege one version of marriage in law as a gender-neutral, couple-
centered bond that centers primarily on commitment necessarily involves the
public repression of alternative meanings. In classrooms and courtrooms today,
proponents of the couple-centered conception of marriage are arguing that the
commonly held view of marriage as a conjugal union of man and woman is a
prejudice analogous to racism. In Canada, the majority of provincial courts have
argued that this irrational and discriminatory view of marriage needs to be weeded
out of public law and replaced. The proposed Civil Marriage Act is attempting to
bring the rest of Canada into harmony with this legal conclusion. Meanwhile,
alternative legal categories such as civil unions have been panned as a repugnant
separate but equal category.
70
Because the law retains the special legal status
associated with marriage, the redefinition approach authorizes the state to begin to
exert negative pressure on private individuals, organizations, and communities that
subscribe to the older conjugal view of marriage now viewed as discriminatory by
the courts.
Court decisions in both Massachusetts and Canada authorizing same-sex marriage
follow this basic script. Each calls for the substantive redefinition of marriage as a
union of two persons. Each also inaugurates the process of stigmatizing the alter-
native conjugal view of marriage as discriminatory, suggesting the future pariah status
of people who cling to the older view.
In Canada, Ontario Justice Harry S. Lafarge argues that the real, although
unstated, purpose of the restriction [of marriage to a man and a woman] is to preserve
the exclusive privileged status of heterosexual conjugal relationships in society. He
declares this understanding of marriage to be repugnant.
71
In the U.S., the four judge
majority in Goodridge v. Department of Public Health (which legalized same-sex
marriage in Massachusetts) denounced as discriminatory the conjugal view of
marriage as a union of man and woman. The belief that marriage intrinsically unites
male and female in a sexual bond that reinforces their personal obligations to each
other and to any children they produce is dismissed as rooted in persistent prejudices
against persons who are (or who are believed to be) homosexual. The Constitution,
they warn, quoting a 1984 Supreme Court case, cannot control such prejudices but
neither can it tolerate them.
72
As the majority in Baehr v. Lewin (a 1993 case in Hawaii
regarding same-sex unions) warned, constitutional law may mandate, like it or not,
that customs change with an evolving social order.
73
SER 156
Page 27
This strong language suggests that the legal creation of a couple-centered under-
standing of marriage is achieved by placing the older conjugal meaning of marriage
under a moral and legal cloud of suspicion. It will place the law in a stance that is
hostile towards cultural and religious communities that adhere to the ethos of con-
jugal marriage as the backbone of their communal life.
In an important decision, Canadian Justice Robert Blair
candidly remarked that this change was not an incremental
one but rather a profound change with serious implications
for vast areas of marriage and family law. Blair states that
the consequences and potential reverberations flowing from such
a transformation in the concept of marriage are extremely
complex. They will touch the core of many peoples belief and
value systems, and their resolution is laden with social, political,
cultural, emotional, and legal ramifications. They require a
response to a myriad of consequential issues relating to such things as inheritance
and property rights, filiation, alternative biogenetic and artificial birth technologies,
adoption, and other marriage-status driven matters.
74
Both advocates and opponents agree that the redefinition of marriage would do
far more than simply incorporate the small number of homosexuals in the population
into the existing marital regime.
The Third Direction: Disestablishment, or the Separation of Marriage and State
How might we avoid contentious public disputes about the meaning of marriage?
One possible solution is to conclude that the law should no longer establish any
definition of marriage. Only a few years ago, almost no one favored this idea. But
today this option appears to be gaining converts across the political spectrum.
75
Disestablishment is thus a third possible direction for the future of marriage.
On the left, queer theorists such as Michael Warner adopt a radical liberationist
argument for disestablishment.
76
Warner argues that the extension of marriage to gays
and lesbians is no less than an attempt to herd all human sexuality into the narrow
conjugal box. Others support disestablishment because they feel that marriage is
essentially a religious institution, something in which a secularized liberal state
should have no role. One proponent of this view, Nancy Cott, argues that Christian
models of conjugal monogamy have been legally imposed on social life.
77
Another
author similarly characterizes the permanent, monogamous, marriage, nuclear,
heterosexual concept of family as an explicitly Christian concept of marriage.
78
In
this view, the heterosexual definition of marriage legally imposes a particular the-
ological or religious vision of marriage on society, one that violates the convictions
Sex, gender, and
procreativity are stripped
from marriages
public meaning.
SER 157
Page 28
of sexual dissenters and nonconformists.
79
Cott and others feel that the separation of
church and state requires ridding the law of any theological vision of marriage.
However, redefining marriage provides no easy solution to the dilemma of state
endorsement of some religious view. Religious groups can be found that endorse
same-sex marriage, polygamy, monogamy, and even polyamory.
80
In choosing any
substantive vision of marriage, therefore, the state will end up endorsing some
religions marital vision.
Faced with competing and conflicting conceptions of marriage, proponents of
disestablishment argue that the state should take this breakdown of social consensus
as the cue for it to get out of the marriage business.
81
They argue that the liberal
state learned how to adopt a stance of measured distance towards religion and the
economy. It must now adopt a stance of measured distance towards marriage. Civil
matters related to interdependent relationships (taxation, inheritance, community
property, and more) could be handled by a more neutral registry system.
The removal of marriage as a legal category was one option put forward by the
Canadian court decisions striking down the existing law of marriage.
82
It was also
proposed as an option by the Department of Justice in its directives to Canadas
Standing Committee on Justice and Human Rights in hearings on the question of
same-sex marriage. The disestablishment of marriage would be achieved by
removing all federal references to marriage and replacing them by a neutral registry
system.
83
In the Beyond Conjugality report, the Law Commission of Canada considers
Nancy Cotts argument for disestablishment:
Borrowing the term from the history of church and state, Nancy Cott has described
the transformation in the relationship between marriage and the state in the United
States as disestablishment. Just as the state does not recognize a single, officially
established church, no longer is any single, official model of adult intimate relation-
ship supported and enforced by the state.
84
Instead, the law would embrace virtually all interdependent relationships.
Indications of a marital, conjugal relationship such as sexual intimacy, cohabitation,
the dyadic restriction (only two people can get married), and even restrictions based
on consanguinity would be removed from law.
85
This approach is grounded in the
conviction that democratic societies have a fundamental obligation to respect and
promote equality between different kinds of relationships, to celebrate the diversity
of personal adult relationships, and to honor the freedom to choose whether and
with whom to form close personal relationships.
86
The new family law would be
in essence a universal buddy system that offers legal protections for all citizens,
whether straight or gay, parents or not, and whether they are involved with only
one person, or many.
SER 158
Page 29
Yet once family law becomes a universal buddy system, some have reasonably
asked why the law should be concerned at all about who is having sex with
whom.
87
That the law traditionally has an interest in sexual activity largely because
children often arise intentionally or not from heterosexual couplings seems
currently to escape the attention of many scholars and, indeed, an increasing number
of judges. Rather, they conclude that the legal preoccupation
with sexual intimacy is arbitrary and pointless. One study on
the legal irrelevancy of sex approvingly cites Eric Lowther, a
member of the Canadian Parliament, who said the following
when speaking in opposition to the extension of benefits to
same-sex couples:
There are many types of gender relationships: siblings, friends,
roommates, partners, et cetera. However, the only relationship
the government wants to include is when two people of the same
gender are involved in private sexual activity, or what is more commonly known
as homosexuality. No sex and no benefits is the governments approach to this bill.
Even if everything else is the same, even if there is a long time cohabitation and
dependency, if there is no sex there are no benefits. Bill C-23 is a benefits-for-sex-
bill. It is crazy.
88
Lowther favors the existing definition of marriage as a heterosexual bond. His
critics are advocates of same-sex marriage. Yet both agree that there is a fundamental
flaw in the current legal construction of conjugality. According to them,
the question of whether a relationship has a sexual component bears no connection
to legitimate state objectives. Once this is recognized, and sex is removed from the
scope of relational inquiries, the distinction between conjugal and non-conjugal
relationships collapses. And we then need to develop better ways to determine
when and how the existence of an adult personal relationship is relevant and
should be recognized in law.
89
The fundamental argument of the Law Commission of Canada in Beyond
Conjugality is the same. The report argues for a broad legislative approach to all adult
close relationships that involve significant mutual dependence. The presence or
absence of sexual conduct in the relationship is considered incidental. The fact that
some kinds of sex acts produce children and some do not merits no consideration.
As mentioned earlier, Beyond Conjugality does end somewhat confusingly with
a call for the redefinition of marriage, even after making a strong case for disestab-
lishment.
90
However, the original thrust of the report, found in its title, was to lay
out a new legal framework which would eliminate the category of conjugality from
As the law becomes a
universal buddy system,
why should it care about
who is having sex with
whom?
SER 159
Page 30
law and replace it with a more inclusive civil registry system. In such a system,
marriage as we have known it marriage as a social institution would likely
still play a role for some time to come. But in the eyes of the law, that role will be
a bit part, written in very small print and destined eventually to wither away.
In Canada this classical liberal argument for disestablishment has been drowned
out by a newer and more aggressive social liberalism arguing for a redefinition of
marriage. But it was one of Canadas historical Liberal leaders, Pierre Elliot Trudeau,
who laid down the principle that the state must get out of the bedrooms of the
nation. Some liberals argue that disestablishment is the only viable alternative in the
face of apparently irresolvable legal and political disagreements about the authori-
tative meaning of conjugality.
On the right-leaning end of the spectrum, certain religious constituencies are also
questioning whether disestablishment might be preferable to a full-fledged legal
redefinition of marriage. They point out that the political regulation of marriage was
a relatively late development in the history of Western marriage. For some, the state
has done more harm than good in its attempts to influence the direction of the
marriage culture. Perhaps its time to get the state out of the marriage business.
91
They
hope that, just as the separation of religion and state is responsible for the relatively
flourishing religious sector in the United States, getting the government out of marriage
would be a prelude to a marriage revival. They argue that marriage, like religion, can
only really flourish when it is freed from political control and manipulation.
But it is clear that there is nothing neutral about the state refusing to recognize
and accommodate the fact of marriage in law. In places like the United States,
where marriage remains a significant legal category, its disestablishment would take
an enormous amount of political and cultural energy of the kind that is unlikely to
feed a flourishing marriage culture. More likely the disestablishment of marriage
would support a troubling and already all too common perception that marriage
may be a nice ceremony but is no longer a key social institution.
Ironically, the consequence of disestablishment is not likely to be greater
individual freedom, but rather more intense and far-reaching state regulation of
formerly private relations. Married people generally regulate their family affairs
without direct government interference, except in cases of criminality or violence.
By comparison, the state routinely tells divorced and unmarried parents when they
can see their kids and how much child support to pay, and often intervenes in
thorny disagreements such as what school the child will attend, or what religion he
or she will be raised in, or if a parent is allowed to relocate. Outside of marriage,
the state is necessarily drawn into greater and more intrusive regulation of family
life. Because sex between men and women continues to produce children, and
because women raising children alone are economically and socially disadvantaged,
governments will continually wrestle with expensive and intrusive efforts to protect
children born outside of marital unions.
SER 160
Page 31
Finally, the rights disestablishment argument presumes that the state has no key
interest in the existence of marriage. While marriage is partly a religious institution
for religious people, it has never been only a religious act. In the Western tradition
marriage has represented the best efforts of state and society to integrate disparate
goods love, money, mutual support, sex, children in the service of helping
men and women raise the next generation in circumstances
most likely to sustain them, their children, and the society.
The huge and complex slice of human experience consti-
tuted by heterosexual bonding, procreativity, and parent-child
connectedness sweeps across non-religious as well as religious
spheres of social activity and meaning. In a real sense, marriage
is bigger and more elemental to human life than religion.
Marriage in every known society has been deeply influenced
and colored by religious traditions in the societies in which it
has taken root. But marriage is even older than some of our
oldest religious traditions. It existed before Judaism and well before Christianity and
Islam. Marriage is influenced by religion, but it is not solely a religious institution,
and it is certainly not solely a Christian institution. Religious traditions and civil
society have critical roles to play in shaping a marriage culture; but in a large,
complex society, government and the law will ignore marriage at their peril.
Some disestablishment proponents also seem to assume that children
can be treated as a category separate from adult relationships. Martha Fineman,
for instance, argues that the law should get out of adult relationships and leave them
to private contracts. She believes that this move would allow the law and public
policy to focus its attention on adult-child caregiving relationships. However, this
seemingly logical deconstruction is but a symptom of the family fragmentation that
has a deeply negative impact on children. Disestablishment might work well in a
world of freestanding adult relationships. But the bedrooms of the nation still produce
children. The offspring of our sexual bonds are profoundly vulnerable and demand
the states interest.
Why Just Two?
As Beyond Conjugalitys provocative title suggests, the family legal trends
sweeping North America and the world have no natural or necessary stopping point.
All of these major trends in law are part of a movement to channel public law into
a new authoritative framework that is beyond conjugality. Where is this movement
leading? Once marriage is repositioned as merely one of many equally valid examples
of a close relationship, is there a compelling rationale for refusing legal recognition
to any close relationship, including all forms of friendship and mutual care? Probably
not. If conjugal relationships vary widely and almost infinitely, then virtually any
Absent marriage,
the state is drawn into
more intrusive regulation
of family life.
SER 161
Page 32
caring or sharing close relationship is arguably worthy of state recognition and
social support. Such a move appears to set the stage for a vast extension of the rule
of law into the sphere of intimate relations, including legal recognition of multiple
close relationships.
Those determined to alter the public meaning of marriage admonish us to shelve
such questions. A Canadian human rights lawyer insists that problematic concerns
about where new legal changes might lead need not be decided at this point. The
immediate and pressing legal challenge is to redefine marriage in order to include
same-sex couples. Raising the problem of future legal implications merely compli-
cates an already thorny issue.
92
However, the debate about the next round of legal reforms has already begun.
In An Introduction to Family Law, Gillian Douglas of Cardiff Law School agrees
with the American Law Institute report, arguing that the continuing limitation of
marriage to heterosexual couples derives from an ideological rather than a logical
imperative. She follows this observation with a deconstructive swipe at another key
pillar of what she terms the traditional view of marriage its limitation to two
people. Douglas writes: The abhorrence of bigamy appears to stem again from the
traditional view of marriage as the exclusive locus for a sexual relationship and from
a reluctance to contemplate such a relationship involving multiple partners.
93
Critics of legalizing same-sex marriage have occasionally argued that once gender
is removed from the definition of marriage, there will be little rationale to limit the
number of people in a marriage. This slippery slope argument is usually derided
by advocates of same-sex marriage as being made in bad faith. What most people
do not know is that the argument for the legal recognition of polyamory is more
likely today to be raised in legal circles by leading proponents of close relationship
theory, not critics of same-sex marriage. Much talk about polyamory is coming from
the left, not the right. Hoping to ride the coattails of the gay marriage movement,
some, like the Unitarian Universalists for Polyamorous Awareness, are now pushing
for liberal religious traditions to recognize multiple-partner marriage.
94
Similarly, Beyond Conjugality raises the question of whether the new legal
category of close personal relationship should be limited to two people. The
report insists that the values and principles of autonomy and state neutrality
require that people be free to choose the form and nature of their close personal
adult relationships.
95
Roger Rubin, a former vice-president of the National Council
on Family Relations, is confident that the current movement to redefine marriage
has set the stage for a broader discussion over which relationships should be legally
recognized.
96
Professor Elizabeth Emens of the University of Chicago Law School
has followed up with a major legal defense of polyamory.
97
We discover that in the plastic world of intimate relationships, firm distinctions
begin to dissipate. Severed from its link to the biology of heterosexual reproduction,
conjugality begins to inflate and morph. The first inflation successfully drew
SER 162
Page 33
cohabitating relationships into the marital regime. The second inflation, the assim-
ilation of same-sex relationships, has jumped quickly from the academy into the
courtroom. Its legal victories are beginning to stack up. The legal challenge to the
two-person nature of marriage is only a matter of time.
Yet when the dust settles, there is likely to be real dissatisfaction with the
impoverished horizons of this new paradigm, especially with
its likely negative impact on the lives of everyday people. A
culture of pure relationships is marked by profound intellectual
myopia. It fails to bring into focus fundamental facets of human
life: the fact of sexual difference; the enormous tide of hetero-
sexual desire in human life; the massive significance of
male/female bonding and procreativity; the unique social
ecology of parenting, which offers children bonds with their
biological parents; and the rich genealogical nature of family ties and the web of
intergenerational supports for family members that they provide.
These core dimensions of conjugal life are not small issues. Yet in the current
debate, even alluding to them typically invites blank, angry stares. At this crucial
moment for marriage and parenthood in North America, there appears to be no
serious intellectual platform from which to launch a meaningful discussion about
these elemental features of human existence. About these fundamentally important
issues, contemporary family law scholarship is both silent and dismissive.
Parenthood: The Next Legal Frontier
HOW WILL MOVING beyond conjugality affect legal notions of parenthood?
Marriage organizes and helps to secure the basic birthright of children, when
possible, to know and be raised by their own mother and father. A pivotal purpose
of this social institution has been to forge a strong connection between
male/female bonds and the children resulting from those bonds. Moving beyond
the conjugal view of marriage inevitably involves a legal reevaluation of the rela-
tionships between children and their parents. In particular, what is being put into
play is the idea of biological parenthood as a fixed right that the state is obliged
to recognize.
The Civil Marriage Act proposed by the Canadian government not only redefines
marriage but also simultaneously eliminates the category of natural parent from
federal law and replaces it with the category of legal parent.
98
This kind of move
threatens a fundamental reconfiguration of the norms of marriage and parenthood.
Some indication of the future might lie in the reports put out by the American
Law Institute and the Law Commission of Canada. These reports have much to say
about parenting, much of which may be disturbing to parents.
The bedrooms of the
nation still produce
children.
SER 163
Page 34
Beyond Conjugality draws a bright line between marriage (a recognized close
personal adult relationship) and parenthood. The authors argue that these two
categories raise very different issues.
99
Parenthood is not related to marriage.
The central purpose of marriage is to provide an orderly framework in which
couples can express their commitment to each other and voluntarily assume a
range of legal rights and obligations.
100
Children are stripped from the core
meaning of marriage and instead shuffled into another category of close personal
relationships known as intergenerational relationships that involved the rearing
of children.
101
The American Law Institute carries its suspicion of legally enforced norms in
family life into the very definition of parenthood. For the ALI authors, even age-old
standards, such as the one stating that family law should operate in the best
interests of children, are questioned on the grounds that they introduce moral
norms into family law.
102
Katherine Bartlett, one of the ALI authors, writes that too often this age-old
standard masks normative judgments about preferred models of child-parent
relationships:
[T]he best interests of the child is a highly contingent social construction. Although
we often pretend otherwise, it seems clear that our judgments about what is best
for children are as much the result of political and social judgments about what kind
of society we prefer as they are conclusions based upon neutral or scientific data
about what is best for children. The resolution of conflicts over children ultimately
is less a matter of objective fact-finding than it is a matter of deciding what kind of
children and families what kind of relationships we want to have.
103
In the ALI report, Bartlett and her co-authors worry that any appeal to an
objective standard for parental conduct might threaten the one value that figures
most prominently throughout the pages of their report, that of family diversity:
[E]ven when a determinate standard conforms to broadly held views about what
is good for children, it can intrude just as indeterminate standards do on
matters concerning a childs upbringing that society generally leaves up to parents
themselves, and standardize child-rearing arrangements in a way that unnecessarily
curtails diversity and cultural pluralism.
104
In a lecture, Bartlett notes proudly that she and her team were able to come up
with a default rule that avoids these kinds of empirical and normative assumptions
about the family and is, accordingly, less family-standardizing.
105
This default rule
points to past parenting practices. How individual adult claimants have historically
participated in the day-to-day raising of the children with whom they are in close
SER 164
Page 35
relationship will determine their parental status: [This rule] operates not from a
state-determined, family-standardizing ideal but from where the parents themselves
left off. It is based not on empirical evidence of the experience of families in the
aggregate but on the individual experiences of the family before the court.
106
Moreover, methods of determining custody or parental arrangements must be chal-
lenged if they run counter to the commitment this society
avows toward family diversity.
107
In service of this goal, the ALI report affirms the positive
correlation between the interests of the parents and the welfare
of their children.
108
It argues that the courts must carefully
respect the diverse choices and lifestyles of parents since the
improved self-image of the parents rebounds to the ultimate
benefit of the child.
109
It suggests that the law must protect and
foster parental self-esteem. If basic self-esteem needs are not
met in the judicial process, then parents are more likely to
engage in strategic, resentful or uncooperative behavior from which children may
suffer.
110
This broad support for any family that adults dream up is supposed to be in the
interests of children. But just in case, and with remarkable bluntness, the ALI report
notes: Even a childs awareness of such a relationship, or dislike of the individual
with whom a parent has developed an intimate relationship, should not justify
interferences relating to the childs welfare or parental fitness; children cannot be
protected from every source of unhappiness and unease.
111
In the ALI report, even the question who is a parent? is up for grabs. In a
nutshell, their viewpoint states that unless otherwise specified, a parent is either a
legal parent, a parent by estoppel, or a de facto parent. The category of the natural
or biological parent does not figure as an independent category in this threefold
classification, nor do adoptive parents. Instead, biological and adoptive parents are
folded into the other three categories.
112
Traditionally, parent by estoppel has been the case in which a man, in good
faith, believes that he is the father of his spouses child and continues fully accepting
his parental responsibilities even after he learns that he is not the biological father.
The ALI report pries open this concept in order to offer it to any biologically unre-
lated person who wants to take on parenting responsibilities. Thus, a parent could
be a person who lived with the child since the childs birth, holding out and
accepting full and permanent responsibilities as parent, as part of a prior co-parenting
agreement with the childs legal parent.
113
The report thus defines a parent by
estoppel as an individual who, even though not a legal parent, has acted as a parent
under specified circumstances which serve to estop [stop, block] the legal parent
from denying the individuals status as a parent. This category is afforded all of
the privileges of a legal parent.
114
The ALIs close relationship
regime transforms
parenthood into a domain
created by the state.
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The extension of the category of estoppel aims, in part, at legalizing the parental
status of same-sex partners:
[This report] contemplates the situation of two cohabiting adults who undertake to
raise a child together, with equal rights and responsibilities as parents. Adoption is
the clearer, and thus preferred, legal avenue for recognition of such parent-child
relationships, but adoption is sometimes not legally available or possible, especially
if one of the adults is still married to another, or if the adults are both women, or
both men.
115
What is missing from the triad of legal parent, parent by estoppel, and de facto
parent? What is missing is the core idea that parenthood is a category based on bio-
logical realities beyond governmental redefinition. The legal definition of parent is
severed from its deep links to biology and based on a more pliable assessment of
the people who are said to care for a child on a day-to-day basis. Parenthood thus
becomes a flexible category that gives courts and legislatures the capacity to redefine
parental relationships based on evolving standards. In the ALI report, these standards
are typically portrayed as permissive. For example, if an adult wishes to take on
quasi-parental responsibilities for a child, the courts should enforce his or her rights.
But in principle, if the best interests of the child require the imposition of parental
responsibilities on unrelated adults, there is no good reason in the ALI worldview
to abstain from doing so. By living with a parent, a boyfriend or girlfriend can acquire
legally enforceable rights to a child. They may also (and this point is typically unclear)
acquire legally enforceable responsibilities. Parenthood becomes a flexible legal
category, with the courts rather than the childs existing parents determining
when a person has devoted enough care and attention to an unrelated child to
acquire parental rights.
Such proposals attribute a great deal of intention and self-awareness to choices
that adults often make without thinking them through a great deal. For instance,
does a father really intend for his current live-in girlfriend to have a long-term role
as a parent in his childs life, even after he breaks up with her, simply because he
welcomed her caring for his child while they lived together? When a parent remarries,
he or she makes an active decision to form a new family, to bring a stepparent into
their childs life in a parent-like role. Do cohabiting parents approach the decision
to move in together with the same sense of investment? Some may, but many may
not and may avoid marriage precisely because they are unsure how long they want
the relationship to last or how much influence they want their current love interest
to have in their childs life. Surely some adults would be aghast to think that, simply
by living with a childs parent, the law might someday require them to take on
financial or other responsibilities for the child, even if they were no longer involved
with the childs parent.
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Fragmenting Parenthood
Almost as an afterthought, the ALIs new close relationship marital regime
transforms parenthood into a domain created by the state. One scholar writes that
the traditional privileging of biological parenting represents a heterosexual
constraint on the wide range of family forms and practices.
116
Eliminating the notion of biology as the basis of parenthood,
and allowing parenthood to fragment into its plural and varied
forms, is necessary if courts are to make family diversity a legal
and cultural reality.
117
Jonathan Herring, who sees such fragmentation as a positive
change, identifies five contemporary varieties of parenthood.
First, he writes, there is genetic parenthood, the individuals
that supply the egg and sperm needed to produce a baby. Second, there is coital
parenthood, the union of sperm and egg (typically, but not always, in heterosexual
intercourse). Third, there is gestational parenthood, the carrying of the fetus by a
pregnant woman.
118
Fourth, there is post-natal (social or psychological) parent-
hood, the raising of the child after birth. Finally, there is a fifth category that the
author calls intentional parenthood, when an adult or adults who intend to be
parents initiate a process (through surrogacy or assisted reproduction) leading to
the birth of a child.
119
All five forms of parenting can be analytically and practically separate from one
another, as diverse adults participate in the distinct activities of supplying genetic
material, conceiving, carrying, birthing, and nurturing.
Might breaking parenthood up into all its constituent parts lead to some confusion?
The American Law Institute report authors think so. They explore this expanding
pastiche of parental identities that Herring sifts out of current legal debates, trying
to open new legal doors to accommodate the fragmentation. One scholar, Richard
Storrow, argues that the reports shift towards a functional view of parenthood is
heading in exactly the right direction, but suggests that the tweaking of legal categories
will have to go further. Specifically, Storrow argues that the interests of intentional
parents must be addressed.
120
Parenthood by pure intention represents the full
cultural shift from an emphasis on biogenic unity to an emphasis on the family
of choice.
121
Parents who set the process in motion through assisted reproduction
or surrogacy become his ideal type for this type of parenthood.
One rather large problem with this idea is that about half of pregnancies today
are still unplanned. They are unintentional. The brave new world of intentional
parenthood is supposed to provide a child for every adult who wants one. But lets
flip the picture and look at the situation from the childs point of view. If intention,
not biology, becomes the thin legal ground holding parents accountable to their
children, what happens to all the children who are conceived in a moment when
Is the fathers
ex-girlfriend a parent?
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they were not actively wanted by both parents? At a minimum, how will the state
enforce child support payments from fathers who can claim that they never intended
to be a parent in the first place? If enough parents were to buy the American Law
Institute view that biology is essentially unimportant, are there enough intentional
adoptive parents out there to raise all the unintended children who happen to be
born anyway?
In their push to delink law from biology, legal reformers seem blind to the basic
facts of human reproduction. Only the tiniest fraction of babies are born today
through elaborate fusions of genetic, coital, and gestational parenthood. The baby
born of one womans eggs, in another womans womb, with the aid of a sperm
donor, rates headlines precisely because the event is so rare. The vast majority of
babies are still born, both intentionally and not, to men and women who are
engaging in the passionate and often unpredictable business of sex.
Fragmentation of parenthood means more fragmented lives for children who
will be jostled around by an increasingly complex set of adult claims. It also means
more systematic intrusion into the family and adjudication of its internal life by the
state and its courts.
To address the problem, the courts might be wise to consider an old idea:
marriage. When it works, marriage unfragments. It manages to hold together the
intentional, the biological (genetic, coital, and gestational) and the psychological
and social dimensions of parenthood. It creates a thick social ecology that integrates,
rather than endlessly fractures, the basic features of human parenthood.
Across cultures, the institution of marriage works to support the ties of natural and
adoptive parents to their children. It provides broad public affirmation and support
for this type of bond. It enshrines a basic birthright of children whenever possible to
know, to be connected to, and to be raised by both of their biological parents. It does
so in a robust but malleable way (with the possibility of adoption for exceptions to
the rule).
122
The United Nations Convention on the Rights of the Child states that the
child shall have the right from birth to a name, the right to acquire a nationality
and, as far as possible, the right to know and be cared for by his or her parents (Art.
7).
123
The authors of this convention brilliantly recognize several key features of
childrens individual identity and security having a name, being a citizen of a
nation whose laws protect you, and, whenever possible, being raised by the two
people who made you.
New legal changes threaten further to undermine this birthright. For instance,
whatever one feels about the merits of same-sex marriage, it is clear that legalizing
these unions must, of necessity, diminish the social importance of children being
raised by their own biological parents. Rewriting marriage laws to accommodate
same-sex unions sends a powerful signal to the vast majority of would-be parents,
who are heterosexuals, that the law is not explicitly concerned about children
being raised whenever possible by their biological mother and father. Even candid
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advocates for same-sex marriage recognize that the inclusion of these unions in the
social ecology of parenting entails fundamental shifts for children. One advocate
concedes (and celebrates) the fact that building law upon gay experience
involves the reconfiguration of family de-emphasizing blood, gender, and kinship
ties and emphasizing the value of interpersonal commitment. In
our legal culture the linchpin of family law has been the marriage
between a man and a woman who have children through pro-
creative sex. Gay experience with families we choose delinks
family from gender, blood, and kinship. Gay families of choice
are relatively ungendered, raise children that are biologically
unrelated to one or both parents, and often form no more than
a shadowy connection between the larger kinship groups.
124
Precisely this disconnect between children and natural parents is the new legal
vision of marriage that has emerged out of the recent Canadian judgments in favor
of same-sex marriage in Ontario, British Columbia, and Quebec. These decisions
evaluate two features: the unity of the couple and functional parenthood (that is,
the day-to-day raising of children). In this view, the procreative link between marriage
and children drops completely out of view, as well as the genealogical rights of
children to know and be connected to their ancestors. Further, in Canadas proposed
new Civil Marriage Act, the redefinition of marriage requires the elimination of the
category of natural parent across federal law. Parenthood is thus transformed into
a legal construct that has no inherent relationship to sexuality and childbirth.
In the world of the Principles of the Law of Family Dissolution and Beyond
Conjugality, adults construct relationships and children adjust. This understanding
of parent-child relationships frees adults to live as they choose. But the data strongly
suggest that not all adult constructions of parenthood are equally child-friendly. For
example, the common assumption of those who advocate for flexible definitions of
parenthood is that children are just as safe in continuing contact with non-biologi-
cally related caretakers as they are with biological parents. But the actual evidence
points in the opposite direction. A large body of social scientific evidence now
shows that the risk of physical or sexual abuse rises dramatically when children are
cared for in the home by adults unrelated to them, with children being especially
at risk when left alone with their mothers boyfriends. Robin Wilson, a legal scholar
at the University of Maryland, has presented the empirical evidence of increased
risk in an article in the Cornell Law Review.
125
To put it mildly, the data suggest
that legal theorists are standing on very thin ice when they dismiss or debunk the
significance of biological parenthood.
Delinking parenthood from marriage, embracing the variety of relationships
that adults construct as the new standard, and conceptualizing the parent-child
Intention, not biology,
holds parents accountable
to their children.
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relationship as just another close relationship, may free adults to live in the
diverse family types they choose, but it seriously undermines the laws historic role
to seek to protect the best interests of children. Children need and desire, whenever
possible, to be raised by their own parents.
126
Though fallible, marriage is societys
best known way to try to fulfill that need. A legal system that moves its emphasis
from partners to parents may sound good for children, but the actual practice of
fragmenting parenthood and valuing intentional parenthood over all else will
ultimately leave children more, rather than less, insecure.
Conclusion
SOCIAL INSTITUTIONS ARE constituted by their shared public meanings. The legal
imposition of new and contested public meanings upon marriage and parenthood
represents the power of the state hard at work in the soft-shelled domain of civil
society. This legal and political imposition on marriage seeks to re-engineer the
authoritative public norms of these institutions on the basis of appeals to relatively
new theories of diversity, relationality, and functional parenthood.
This trend raises fundamental questions for liberalism. Is the state violating the
measured distance that the liberal state should adopt towards the basic institutions
of civil society? Are the courts legally imposing a sectarian form of social liberalism?
Are the courts abandoning their traditional role of protecting civil society from
encroachment by the state?
127
These moves also hold questions for the future of marriage itself. Institutions
like marriage and parenthood are not simply mechanisms to fulfill individual needs
and aspirations. They are also thick, multi-layered realities that speak to the needs
for meaning and identity within human community. Marriage is the complex cultural
site for opposite-sex bonding. A rich heritage of symbols, myths, theologies, tradi-
tions, poetry, and art has clustered around the marital bond. To change the core
features of marriage is to impact real people, adults and children, whose lives will
be significantly shaped by the renewal or decline of this institution.
The type of legal theorizing proposed by the American Law Institutes Principles
of the Law of Family Dissolution and the Law Commission of Canadas Beyond
Conjugality systematically marginalizes, and drives to the very periphery of public
law, the core features of conjugal marriage and parenthood. The complex social
institution of marriage does require ongoing change to sustain and enrich its devel-
opment. But the well-being of children, parents, couples, and society is seriously
threatened by the push to de-normalize the core features of marriage and parent-
hood and to strip their historic public meanings from law and public discourse.
In this remade world, marriage is reconstituted in order to celebrate relationship
diversity. What drops out of view? Quite a lot, it turns out. Marriage serves critical
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purposes in human culture. It addresses the fact of sexual difference between men
and women, including the unique vulnerabilities that women face in pregnancy and
childbirth. It promotes a unique form of life and culture that integrates the goods
of sexual attraction, interpersonal love and commitment, childbirth, child care and
socialization, and mutual economic and psychological assistance. It provides a
social frame for procreativity. It fosters and maintains connections between children
and their natural parents. It sustains a complex form of social interdependency
between men and women. It supports an integrated form of parenthood, uniting
the biological (or adoptive), gestational, and social roles that parents play.
The value of diversity is key to justice in our civil society. But by itself, diversity
is an inadequate basis for understanding marriage as an institution. The diversity-
trumps-everything approach marginalizes what tradition, religion, and even now
the social sciences tell us about family formation, parenting, and childrens well-
being.
Can an insistence on family diversity as our primary lodestar offer any meaningful
insight into the distinctive significance of marriage in human culture? Can close
relationship theory stir up any reflective wonder about the remarkable social-sexual
ecology that animates human culture? Can functional parenthood capture the deep-
seated human concern for connection between children and their natural parents?
For most ordinary citizens on both sides of this longest border in the world, the
common sense answer to these questions is no.
This rough human wisdom suggests that our leading academics and legal theorists
may be getting it wrong. Not just a little wrong. Not just wrong in a few places. But
deeply, fundamentally wrong. Perhaps we should insist that they go back to the
drawing board and try to get it right.
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Recommendations
1. Recognize that marriage is a social institution, not merely individuals following
laws devised by legal professionals.
2. Identify and encourage people going into the field of family law who will seek
to strengthen rather than weaken marriage.
3. A minimum five-year moratorium should be placed on any changes to the laws
affecting the definition of marriage. The purpose of the moratorium is to allow for
informed democratic consultation and deliberation.
4. Research into family law should broaden its base and welcome a more interdis-
ciplinary approach to issues of marriage, parenthood, and family. Legal research
associations such as the American Law Institute and the Law Commission of Canada
should recognize the limits of their competence to reform these fundamental features
of ordinary life. Their work should be undertaken in a far more interdisciplinary,
exploratory, and collaborative way.
5. Governments should foster more democratic consultation and deliberation on
the question of the role of marriage in society. Broad-based representative commis-
sions should be formed to explore public interest concerns in the area of marriage
and family life. These commissions should consist primarily of those affected by
changes to the institution of marriage: ordinary citizens, cultural communities, marriage
and family life associations, and religious communities, rather than lawyers and
academics.
6. Governments and universities should invest in more research on marriage and
family life. Research should focus on the following:
Gathering relevant statistical information on national trends and developments in
marriage, parenthood and family life;
Gathering cross-cultural and trans-national data;
Interdisciplinary conferences, research and programs on marriage, parenthood
and family life;
Research on the impact of diverse family forms on the well-being of children; and
Research to track properly the shifting attitudes and behaviors of youth culture
in relationship to marriage and pathways to marriage.
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Endnotes
1. John Dewar, Family Law and Its Discontents, International Journal of Law, Policy
and the Family 14 (2000): 59-60.
2. Ibid.
3. Douglass C. North, Institutions, Institutional Change, and Economic Performance
(New York: Cambridge University Press, 1990a). The new institutionalism in economics,
sociology, and social anthropology underlines the critical importance of public norms and
rules. For some classic discussions see North as well as Mary C. Brinton and Victor Nee,
eds., The New Institutionalism in Sociology (New York: Russell Sage Foundation, 1998);
Mary Douglas, How Institutions Think (Syracuse, NY: Syracuse University Press, 1986).
4. Harry Krause, Marriage for the New Millennium: Heterosexual, Same-Sex Or Not
At All? Family Law Quarterly 34 (2000): 284-85.
5. Paul Kahn, The Cultural Study of Law (Chicago: University of Chicago Press, 1999),
123-24.
6. Beverly McLachlin, Freedom of Religion and the Rule of Law, in Recognizing Religion
in a Secular Society, ed. Douglas Farrow (Montreal, QC and Kingston, ON: McGill-Queens
University Press, 2004), 14. See also Katharine T. Bartlett, Re-Expressing Parenthood, in
Family, State and Law, vol. 2, ed. Michael D. Freeman (Dartmouth: Ashgate, 1999), 163.
7. William N. Eskridge, Jr., Equality Practice: Civil Unions and the Future of Gay Rights
(New York: Routledge, 2002), 154.
8. Martha Fineman, The Autonomy Myth: A Theory of Dependency (New York: The New
Press, 2004), 63.
9. One lesson Professor Waaldjik [a leading European gay law theorist] and I would
draw [from the experience of same-sex marriage] is that legal recognition of same-sex
marriage comes through a step-by-step process. Such a process is sequential and
incremental: it proceeds by little steps. Registered partnership laws have not been adopt-
ed until a particular country has first decriminalized consensual sodomy and equalized the
age of consent for homosexual and heterosexual intercourse; then has adopted laws pro-
hibiting employment and other kinds of discrimination against gay people; and, finally, has
provided other kinds of more limited state recognition for same-sex relationships, such as
giving legal benefits to or enforcing legal obligations on cohabiting same-sex couples. That
the Netherlands has just recognized same-sex marriages was facilitated by its prior recognition
of, and successful experience with, registered partnerships. Eskridge, Equality Practice,
153-54.
10. [L]aw cannot liberalize unless public opinion moves, but public attitudes can be
influenced by changes in the law. For gay rights, the impasse suggested by this paradox
can be ameliorated or broken if the proponents of reform move step by step along a
continuum of little reforms. [There are] pragmatic reasons why such a step-by-step process
can break the impasse: it permits gradual adjustment of antigay mindsets, slowly empowers
gay rights advocates, and can discredit antigay arguments. Ibid., 154.
11. Ibid., 225. Margaret Brinig notes that Canada proceeded along a series of small steps
towards legalizing same-sex marriage. See Chapter 6 and Default Rules, in Reconceiving
the Family: Critical Reflections on the American Law Institutes Principles of the Law of
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Family Dissolution, ed. Robin Wilson (Cambridge: Cambridge University Press, forthcoming).
The same case has also been made for Norway and Scandinavia; see Turid Noack,
Cohabitation in Norway: An Accepted and Gradually More Regulated Way of Living,
International Journal of Law, Policy and the Family 15 (2001): 102-17.
12. John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University
Press, 2001), 162.
13. John Locke, Second Treatise on Government, chap. VII, sec. 78.
14. Rawls, Justice as Fairness, 162-3.
15. See Maggie Gallagher and Joshua K. Baker, Do Moms and Dads Matter? Evidence
from the Social Sciences on Family Structure and the Best Interests of the Child, Margins
4 (2004): 161-180.
16. Kristin Anderson Moore, Susan M. Jekielek, and Carol Emig, Marriage from a Childs
Perspective: How Does Family Structure Affect Children and What Can We Do About It?
Child Trends Research Brief (Washington, DC: Child Trends, June, 2002), 1. Also available
at http://www.childtrends.org/files/MarriageRB602.pdf. For more evidence of the importance
of intact families for children see Sandra L. Hoffreth and Kermyt G. Anderson, Are all dads
equal? Biology versus marriage as a basis for paternal investment, Journal of Marriage and
Family 65, no. 1, (2003): 213-32; and Wendy D. Manning and Kathleen A. Lamb,
Adolescent Well-Being in Cohabiting, Married, and Single-Parent Families, Journal of
Marriage and Family 65, no. 4, (2003): 876-93.
17. This line of argument is common in evolutionary psychology. For discussions of kin
altruism and parental investment see chapter three in Louise Barrett, Robin Dunbar, and John
Lycett, Human Evolutionary Psychology (Princeton, NJ: Princeton University Press, 2002);
Mary Daly and Margo Wilson, Sex, Evolution and Behavior (Belmont, CA: Wadsworth, 1978).
18. Halpern v. Canada (Attorney General), [2003] 225 D.L.R. (4th) 529 (Can.), par. 130;
Goodridge v. Department of Public Health, 798 N.E.2d 941, 961-64 (2003).
19. See Dan Cere, The Experts Story of Courtship (New York: Institute for American
Values, 2000), 15-31.
20. See, for example, Linda J. Waite and Maggie Gallagher, The Case for Marriage: Why
Married People Are Happier, Healthier and Better-Off Financially (New York: Doubleday,
2000).
21. See David Popenoe and Barbara Dafoe Whitehead, The State of Our Unions: The
Social Health of Marriage in America, 2001, (Rutgers, NJ: The National Marriage Project,
2001).
22. Anthony Giddens, The Transformation of Intimacy: Sexuality, Love and Eroticism in
Modern Societies (Stanford, CA: Stanford University Press, 1992), 58.
23. John Scanzoni, Karen Polonko, Jay Teachman, and Linda Thompson, The Sexual
Bond: Rethinking Families and Close Relationships (Newbury Park, CA: Sage Publications,
1989), 9, 13.
24. One consequence of this flattening of marriage into a close personal relationship is
that the public meaning of marriage must be redefined and shaped by the common patterns
of same-sex relationships, not the distinctive capacities of opposite-sex ones. The Ontario
Court of Appeals was blunt. It stated that the law of marriage needed to be redesigned to
meet the needs, capacities and circumstances of same-sex couples, not the needs,
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capacities and circumstances of opposite-sex couples. This view rested on the basis that
the purpose and effects of the impugned law must at all times be viewed from the
perspective of the claimant. Halpern v. Canada (Attorney General), [2003] 225 D.L.R. (4th)
529 (Can.), par. 91.
25. For a generalized discussion of how institutional frameworks (like scholarly disciplines)
make certain kinds of thoughts unthinkable, see Douglas, How Institutions Think (see n. 3).
26. Scanzoni, et al., The Sexual Bond, 9, 13.
27. Julia Wood and Steve Duck, Off the Beaten Track: New Shores for Relationship
Research, in Understudied Relationships: Off the Beaten Track, ed. Julia Wood and Steve
Duck (Thousand Oaks, CA: Sage, 1995).
28. Scanzoni, et al., The Sexual Bond, 14-24.
29. The European Commission on Family Law is also proposing major legal reforms to
harmonize European family law codes. One of its most recent reports is Principles of
European Family Law Regarding Divorce and Maintenance between Former Spouses
(Antwerp: Intersentia, 2004).
30. The Principles of the Law of Family Dissolution is the work of a select group of legal
academics who had enormous autonomy in the development of this report. David Westfall
raises some critical concerns about the controlled nature of the consultative process. See
Unprincipled Family Dissolution: The American Law Institutes Recommendations for
Spousal Support and Division of Property, Harvard Journal of Law and Public Policy 27
(2004): 918-20.
31. American Law Institute, Principles of the Law of Family Dissolution: Analysis and
Recommendations (Philadelphia: American Law Institute, 2002), chap. 1, I-III (hereinafter
ALI Principles).
32. For example, see the discussion of prohibited factors in the analysis of Criteria
for Parenting Plan, ALI Principles, sec. 2.12.
33. Ibid., chap. 1, I.b.
34. Ibid., sec. 2.02, cmt. c.
35. Katharine T. Bartlett, Saving the Family from the Reformers (Brigitte M.
Bodenheimer Memorial Lecture on the Family), University of California, Davis Law Review
31 (1998): 817.
36. ALI Principles, chap. 6.
37. Ibid., chap. 1, Overview of Chapter 6 (Domestic Partners).
38. Ibid., sec. 6.03.
40. Ibid., chap. 1, I.b.
41. Ibid., chap. 1, IV.b.
42. Ibid.
43. In the context of marital failure, however, the word cause has no such meaning,
and its use simply masks a moral inquiry with a word pretending a more objective
assessment. Some individuals tolerate their spouses drunkenness or adultery and remain
in the marriage. Others may seek divorce if their spouse grows fat, or spends long hours
in the office. Is the divorce caused by one spouses offensive conduct, or by the others
unreasonable intolerance? In deciding that question the court is assessing the parties relative
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moral failings, not the relationship between independent and dependent variables. And the
complexity of marital relations of course confounds the inquiry. Ibid., chap. 1, III.a(1).
44. Ibid.
45. Ibid.
46. Law Commission of Canada, Recognizing and Supporting Close Personal Relationships
Between Adults (discussion paper) (Ottawa: Law Commission of Canada, 2000), sec. 2(b).
47. Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close
Personal Adult Relationships (Ottawa: Law Commission of Canada, 2001), xxiv-xxv (hereinafter
Beyond Conjugality).
48. Brenda Cossman and Bruce Ryder, Gay, Lesbian and Unmarried Heterosexual
Couples and the Family Law Act: Accommodating a Diversity of Family Forms (Toronto,
ON: Ontario Law Reform Commission, 1993), 5.
49. Beyond Conjugality, xxii-xxiii, 13-15.
50. In the Ontario Superior Court marriage decision, Justice Robert Blair stated that
marriage must be open to same-sex couples who live in long-term, committed, relationships
marriage-like in everything but name just as it is to heterosexual couples. Halpern
v. Canada, 215 D.L.R. (4th) 223 (Can.), par. 32.
51. For example, Eskridges argument for the similarity of same-sex and opposite-sex
relationships cites as his authorities the research of close relationship theorists Letitia Anne
Peplau and Susan D. Cochrane, A Relationship Perspective on Homosexuality in
Homosexuality/Heterosexuality: Concepts of Sexual Orientation, ed. David P. McWhirter
(New York: Oxford University Press, 1990. William N. Eskridge, Jr., The Case for Same-Sex
Marriage: From Sexual Liberty to Civilized Commitment (New York: Free Press, 1996), 109,
fn.6.
52. One consequence of this flattening of marriage into a close personal relationship is
that the public meaning of marriage must be redefined and shaped by the common pat-
terns of same-sex relationships, not the distinctive capacities of opposite-sex ones. The
Ontario Court of Appeal was blunt. It stated in Halpern that the law of marriage needed to
be redesigned to meet the needs, capacities and circumstances of same-sex couples, not
the needs, capacities and circumstances of opposite-sex couples (see n. 24).
53. ALI Principles, sec. 6.01.
55. Ibid., sec. 6.03. Sharing a life together as a couple is characterized by features such
as common commitments or promises to one another (oral or written) or representations
to others of their relationship, economic interdependence, collaborative life together,
evidence that the relationship wrought change in the life of either or both of the parties,
responsibilities for each other such as each naming the other as beneficiary, qualitative
distinctiveness of the relationship compared to other relationships, emotional or physical
intimacy of the relationship, assumption of parental functions toward a child.
56. Molodowich v. Penttinen, [1980] 17 R.F.L. (2d) 376 (Can.).
57. Under sexual and personal behavior Judge Kurisko posed the following questions:
Did the parties have sexual relations? If not, why not? Did they maintain an attitude of
fidelity to each other? What were their feelings toward each other? Did they communicate
on a personal level? Did they eat their meals together? What, if anything, did they do to
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assist each other with problems or during illness? Did they buy gifts for each other on
special occasions? Molodowich v. Penttinen, par. 21-27.
58. Macmillan-Dekker v. Dekker [2000] 10 R.F.L. (5th) 352 (Can.), par. 68, quoted in
Brenda Cossman and Bruce Ryder, What is Marriage-Like Like? The Irrelevance of
Conjugality, Canadian Journal of Family Law 18 (2001): 269, 290.
59. Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554 (Can.), par. 60. In this case
an employee was denied bereavement leave based on family status to attend the funeral
of the father of his same-sex partner. The majority decided against the complainant.
60. M. v. H., [1999] 2 S.C.R. 3 (Can.), par. 60. This ground-breaking decision extended
the right to spousal support to gays and lesbians in same-sex unions.
61. Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of
Cohabitant Obligations, University of California, Los Angeles Law Review 52 (2005).
62. Roderick A. Macdonald, All in the Family, Transition Magazine 30, no. 2 (2000),
http://www.vifamily.ca/library/transition/302/302.html#1.
63. Miron v. Trudel, [1995] 2 S.C.R. 418 (Can.), par. 105; Nova Scotia vs. Walsh, [2002] 4
S.C.R. 325 (Can.), par. 42.
64. Much research in Canada and Europe combine formal and informal couples in
one category. While this may be a justifiable decision for some purposes it has the side
effect of making it impossible to discern in those studies whether and how married and
cohabiting couples differ.
65. William J. Doherty, et al., Why Marriage Matters: 21 Conclusions from the Social
Sciences (New York City: Institute for American Values, 2002), 7-8 (internal citations omitted).
66. Fully three-quarters of children born to cohabiting parents will see their parents
split up before they reach age sixteen, whereas only about a third of children born to married
parents face a similar fate. One reason is that marriage rates for cohabiting couples have
been plummeting. In the last decade, the proportion of cohabiting mothers who go on to
eventually marry the childs father declined from 57% to 44%. From David Popenoe and
Barbara Dafoe Whitehead, Should We Live Together? What Young Adults Need to Know
about Cohabitation Before Marriage, 2nd ed. (Piscataway, NJ: National Marriage Project,
2002), 8. They cite Wendy Manning, The Implications of Cohabitation for Childrens Well-
Being, in Just Living Together: Implications for Children, Families, and Public Policy, ed.
Alan Booth and Ann C. Crouter (Hillsdale, NJ: Lawrence Erlbaum Associates, 2002).
67. James M. Donovan, An Ethical Argument to Restrict Domestic Partnerships to Same-
Sex Couples, Law and Sexuality 8 (1998): 649.
68. Terry Kogan, Competing Approaches to Same-Sex Versus Opposite-Sex, Unmarried
Couples in Domestic Partnerships and Ordinances, Brigham Young University Law Review
2001: 1023-44.
69. Jonathan Rauch argues for this approach in Gay Marriage: Why It is Good for Gays,
Good for Straights, and Good for America (New York: Henry Holt and Company, 2004).
70. See, for instance, Prime Minister Paul Martins opening speech in favor of the new
Civil Marriage Act, House of Commons, Hansard, Feb. 16, 2005.
71. Halpern v. Canada, 215 D.L.R. (4th) 223 (Can.), par. 243.
72. Goodridge, which on November 18, 2003, rendered a four-three decision in favor
of same-sex marriage, was the American version of Halpern v. Canada. The quoted phrases
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are drawn from the opinion of Justice Greaney. Goodridge v. Department of Public Health,
798 N.E.2d 941, 968 (2003); Palmore v. Sidoti 466 U.S. 429, 433 (1984). See also the opinion
of Justices Marshall, Greaney, Ireland, and Cowin in Opinion to the Senate, 802 N.E.2d 565,
569-72 (2004).
73. Baehr v. Lewin, 74 Haw. 530, 570 (1993).
74. The Courts are not the best equipped to conduct such a balancing exercise, in my
opinion. This is not an incremental change in the law. It is a profound change. Although
there may be historical examples of the acceptance of same-sex unions, everyone
acknowledges that the institution of marriage has been commonly understood and accepted
for centuries as the union of a man and a woman. Deep-seated cultural, religious, and
socio-political mores have evolved and shapes societys views of family, child-rearing and
protection, and couple-hood based upon that heterosexual view of marriage. The apparent
simplicity of linguistic change in the wording of a law does not necessarily equate with an
incremental change in that law. To say that altering the common law meaning of marriage
to include same-sex unions is an incremental change, in my view, is to strip the word
incremental of its meaning. Justice Robert Blair in Halpern v. Canada, 215 D.L.R. (4th)
223 (Can.), par. 97-99.
75. For discussion in the popular press, see for example, John Havelock, State should
limit role to civil unions, Anchorage (AK) Daily News, July 31, 2004; Editorial, Avoid
divisiveness over who marries; Religious bodies should bless holy matrimony; government
should protect civil unions, San Antonio (TX) Express-News, Nov. 15, 2004; Michael
Kinsley, Abolish Marriage; Lets really get the government out of our bedrooms,
Washington Post, July 3, 2003; Deroy Murdock, Stop Licensing Marriage, Scripps Howard
News Service, July 10, 2004.
76. Michael Warner, The Trouble With Normal: Sex, Politics and the Ethics of Queer Life
(Cambridge, MA: Harvard University Press, 2000).
77. Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA:
Harvard University Press, 2001).
78. Nicholas Bala, Context and Inclusivity in Canadas Evolving Definition of the
Family, International Journal of Law, Policy and the Family 16 (2002): 147.
79. See Janet R. Jacobsen and Ann Pelegrini, Love the Sin: Sexual Regulation and the
Limits of Tolerance (New York: New York University Press, 2003); Larry C. Backer, Religion
as the Language of Discourse of Same Sex Marriage, Capital University Law Review 2002:
221-278.
80. Polyamory means many loves, while polygamy means many marriages.
Polyamorous unions of three or more people may or may not involve one or more couples
who are married to one another.
81. Some calling for disestablishment include: Paula L. Ettelbrick, Domestic Partnership,
Civil Unions, or Marriage: One Size Does Not Fit All, Albany Law Review 64 (2001): 905;
Dianne Post, Why Marriage Should Be Abolished, Womens Rights Law Reporter 18 (1997):
283; Patricia A. Cain, Imagine Theres No Marriage, Quinnipiac Law Review 16 (1996): 27;
Nancy D. Polikoff, Why Lesbians and Gay Men Should Read Martha Fineman, American
University Journal of Gender, Social Policy and Law 8 (1999): 167, 176; Martha Albertson
Fineman, The Neutered Mother, the Sexual Family and Other Twentieth-Century Tragedies
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Page 49
(New York: Routledge, 1995), 270-72; Nancy D. Polikoff, We Will Get What We Ask For:
Why Legalizing Gay and Lesbian Marriage Will Not Dismantle the Legal Structure of Gender
in Every Marriage, Virginia Law Review 79 (1993): 1535; Jennifer Jaff, Wedding Bell Blues:
The Position of Unmarried People in American Law, Arizona Law Review 30 (1988): 207.
82. Halpern v. Canada (Attorney General), [2003] 225 D.L.R. (4th) 529 (Can.), par. 150.
83. Department of Justice Canada, Marriage and Legal Recognition of Same-Sex
Unions: A Discussion Paper (discussion paper) (Ottawa: Department of Justice Canada,
2002), http://www.justice.gc.ca/en/dept/pub/mar/mar_e.pdf.
84. Beyond Conjugality, 128.
85. Ibid., 118-120.
86. Ibid., 13, 17.
87. For instance see Cossman and Ryder, What is Marriage-Like Like? (see n. 58).
88. Ibid., 323.
89. Ibid., 326.
90. This tension in the report may be due to the fact that the composition of the report
occurred under the leadership of two presidents of the Law Commission.
91. In 1880, the first modern papal encyclical on marriage, On Christian Marriage by
Leo XIII, expressed serious concerns about the political usurpation of marriage by the
modern state.
92. Julius Grey, Equality Rights Versus the Right to Marriage: Toward the Path of
Canadian Compromise, Policy Options (October, 2003): 33.
93. Gillian Douglas, An Introduction to Family Law, Clarendon Law Series (Oxford:
Oxford University Press, 2001), 30-31.
94. See http://www.uupa.org.
95. Beyond Conjugality, 133, fn.16.
96. See Rubins Alternative Lifestyles Today in Handbook of Contemporary Families,
ed. M. Coleman and L.H. Ganong (Thousand Oaks: Sage Publications, 2004), 32-33. Note
that same-sex marriage laws also threaten the dyadic restriction on marriage because in
order for same-sex couples to have children without resorting to adoption they must
necessarily involve a third person in order to conceive and bear a child.
97. Elizabeth F. Emens, Monogamys Law: Compulsory Monogamy and Polyamorous
Existence, New York University Review of Law and Social Change 29 (2005).
98. See Bill C-38, Civil Marriage Act, 1st sess., 38th Parliament (2005), Consequential
Amendments.
99. Beyond Conjugality, xxiv.
100. Ibid., 129.
101. Ibid., xxiv.
102. ALI Principles, sec. 2.08, cmt b.
103. Bartlett, Re-Expressing Parenthood, 173 (see n. 6).
104. ALI Principles, 2.02(c).
105. Bartlett, Saving the Family from the Reformers, 852 (see n. 35).
106. Ibid., 853.
107. ALI Principles, 1.01.
108. Ibid., 2.02, reporters note a.
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Page 50
109. Ibid.
110. Ibid., 2.02(b).
111. Ibid., 2.12(f).
112. Ibid., 2.03(1). The legal category will ordinarily include biological parents,
whether or not they are or ever have been married to each other, and adoptive parents.
Ibid., 2.03, cmt. a.
113. Ibid., 2.03(1)(b)(iii).
114. Ibid., 2.03(1)(b); ibid., cmt. b.
115. Ibid., 2.03.
116. Helen Rhoades, The Rise and Rise of Shared Parenting Laws: A Critical
Perspective, Canadian Journal of Family Law 19 (2002): 107-108.
117. Studies arguing for the deconstruction of the concept of natural parent and kinship
relations include: Sara Franklin and Susan McKinnon, eds., Relative Values: Reconfiguring
Kinship Studies (Durham, NC: Duke University Press, 2001); Judith Butler, Is Kinship Always
Heterosexual? in Undoing Gender (New York: Routledge, 2004), 102-130.
118. Most people are familiar with the concept of a surrogate mother, a woman who
carries a baby which is genetically her child with plans to give the baby to another person
or couple after birth. A newer form of surrogacy is the gestational carrier who carries a
fetus created by using another womans egg. Infertile couples might prefer gestational
carriers because of the possibility of having a baby that is genetically their own and/or the
lower perceived risk that the surrogate will change her mind and keep the child.
119. Jonathan Herring, Family Law (London: Longman, 2001), 264, 305f.
120. Richard F. Storrow, Parenthood by Pure Intention: Assisted Reproduction and the
Functional Approach to Parentage, Hastings Law Journal 53 (2002): 597-679; Janet L.
Dolgin, Choice, Tradition, and the New Genetics: The Fragmentation of the Ideology of
Family, Connecticut Law Review 32 (2000): 520-566.
121. Storrow, Parenthood by Pure Intention, 628.
122. Current legislation in Quebec dealing with sperm donation places the rights of
adults over the rights of children to know their biological parents.
123. This right also implies that children should not to be the subjects or products of
experimental reproductive technologies that may have long-term effects on life, health, and
identity that remain as yet unknown.
124. William N. Eskridge Jr., Gaylaw: Challenging Apartheid in the Closet (Cambridge,
MA: Harvard University Press, 1999), 11.
125. Robin Wilson, Children at Risk: The Sexual Exploitation of Female Children after
Divorce, Cornell Law Review 86 (2001) 251, 256.
126. June Carbone, From Partners to Parents: The Second Revolution in Family Law
(New York: Columbia University Press, 2000), 227
127. See F. C. DeCostes insightful discussion in The Halpern Transformation: Same-
Sex Marriage, Civil Society, and the Limits of Liberal Law, Alberta Law Review 41 (2003):
619.
SER 180
The Institute for American Values is a nonpartisan organization dedicated to
strengthening families and civil society in the U.S. and the world. The Institute
brings together approximately 100 leading scholars from across the human sciences
and across the political spectrum for interdisciplinary deliberation, collaborative
research, and joint public statements on the challenges facing families and civil
society. In all of its work, the Institute seeks to bring fresh analyses and new
research to the attention of policy makers in government, opinion makers in the
media, and decision makers in the private sector.
The Institute for Marriage and Public Policy, founded in 2003, is a private, nonpartisan
organization. iMAPPs unique mission is high quality research and public education
on ways that law and public policy can strengthen marriage as a social institution.
About the Institute for the Study of Marriage, Law and Culture
The Institute for the Study of Marriage, Law and Culture is a nonpartisan, nonprofit
Canadian association for research and study of current trends and developments in
marriage and family. The Institute draws together scholars from different disciplines
and seeks to stimulate ongoing research by providing a forum for innovative and
informed dialogue for scholars, policy makers and the public at large.
1841 Broadway
Suite 211
New York, NY 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
Institute for Marriage and
Public Policy
1413 K Street, NW
Suite 1000
Washington, D.C. 20005
Tel: (202) 216-9430
Fax: (202) 216-9431
info@imapp.org
www.imapp.org
Institute for the Study of
Marriage, Law and Culture
3484, Peel Street
Montreal, Quebec H3A 1W8
Canada
Tel: (514) 862-4105
Fax: (514) 398-2546
inquiries@marriageinstitute.ca
www.marriageinstitute.ca
SER 181
The Revolution in Parenthood
The Emerging Global Clash Between Adult Rights
and Childrens Needs
Institute for the Study of Marriage, Law, and Culture
Institute of Marriage and Family Canada
An International Appeal from the Commission on Parenthoods Future
Elizabeth Marquardt, Principal Investigator
SER 182
This international appeal is the first publication sponsored by the Commission on
Parenthoods Future, an independent, nonpartisan group of scholars and leaders
who have come together to investigate the status of parenthood and make recom-
mendations for the future. The author of this appeal is grateful for the advice and
support of Commission members as well as leaders of the four co-publishing orga-
nizations: Institute of Marriage and Family Canada; Institute for Marriage and Public
Policy; Institute for the Study of Marriage, Law, and Culture; and the Institute for
American Values.
The French translation by Agns Jacob is also deeply appreciated.
On the cover: Childs Drawing, Photodisc Green
Collection. Getty Images/Steve Cole.
2006, Institute for American Values. All rights
reserved. No reproduction of the materials con-
tained herein is permitted without the written per-
mission of the Institute for American Values.
ISBN: 1-931764-12-3
ISBN-13: 978-1-931764-12-4
New York, NY 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
SER 183
Table of Contents
Members of the Commission on Parenthoods Future..............................................
About the Commission on Parenthoods Future........................................................
Executive Summary.....................................................................................................
Executive Summary in French....................................................................................
Introduction.................................................................................................................
Redefining ParenthoodWhats Happening Around the World Right Now..........
How the Global Redefinition of Parenthood Threatens Childrens Identity.............
The Childs Point of View...........................................................................................
Emerging Voices from Children.....................................................................
The Social Science Evidence Suggesting the Importance of
Biological Parents...........................................................................................
Redefining ParenthoodWhats Next?......................................................................
Increasing Slippage in the Meaning of Fatherhood and Motherhood..........
Cloning and Same-Sex Procreation...............................................................
Group Marriage: Polyamory and Polygamy..................................................
Conclusion..................................................................................................................
Endnotes......................................................................................................................
Note
This report, originally written in English, has been translated into French to aid
in the Canadian release. The Executive Summary in French is included with this
English version of the report. The full report in French can be downloaded from:
http://www.americanvalues.org.
4
4
5
7
10
10
15
17
17
19
22
22
25
28
31
34
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Commission on Parenthoods Future
Don Browning, University of Chicago Divinity School (Emeritus)
Daniel Cere, Institute for the Study of Marriage, Law and Culture
Jean Bethke Elshtain, University of Chicago Divinity School
Norval Glenn, University of Texas at Austin
Robert P. George, Princeton University
Amy Laura Hall, Duke University
Timothy P. Jackson, Emory University
Kathleen Kovner Kline, University of Colorado Health Services Center
Anne Manne, author and social commentator (Australia)
Suzy Marta, Rainbows Inc.
Elizabeth Marquardt, Institute for American Values (Principal Investigator)
Steven Nock, University of Virginia
Mitchell B. Pearlstein, Center of the American Experiment
David Popenoe, Rutgers University
Stephen G. Post, Case Western Reserve University
Dave Quist, Institute of Marriage and Family Canada
Derek Rogusky, Institute of Marriage and Family Canada
Luis Tellez, Witherspoon Institute
Amy Wax, University of Pennsylvania Law School
W. Bradford Wilcox, University of Virginia
John Witte, Jr., Emory University
Peter Wood, The Kings College
About the Commission on Parenthoods Future
The author of this report is a member of the Commission on Parenthoods Future.
The Commission is an independent, nonpartisan group of scholars and leaders who
have come together to investigate the status of parenthood as a legal, ethical, social,
and scientific category in contemporary societies and to make recommendations for
the future. Commission members convene scholarly conferences, produce books,
reports, and public statements, write for popular and scholarly publications, and
engage in public speaking.
Page 4
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Page 5
The Revolution in Parenthood
The Emerging Global Clash Between Adult Rights and
Childrens Needs
Executive Summary
Around the world, the two-person, mother-father model of parenthood is being fun-
damentally challenged.
In Canada, with virtually no debate, the controversial law that brought about same-
sex marriage quietly included the provision to erase the term natural parent across
the board in federal law, replacing it with the term legal parent. With that law, the
locus of power in defining who a childs parents are shifts precipitously from civil
society to the state, with the consequences as yet unknown.
In Spain, after the recent legalization of same-sex marriage the legislature changed
the birth certificates for all children in that nation to read Progenitor A and
Progenitor B instead of mother and father. With that change, the words mother
and father were struck from the first document issued to every newborn by the
state. Similar proposals have been made in other jurisdictions that have legalized
same-sex marriage.
In New Zealand and Australia, influential law commissions have proposed allowing
children conceived with use of sperm or egg donors to have three legal parents. Yet
neither group addresses the real possibility that a childs three legal parents could
break up and feud over the childs best interests.
In the United States, courts often must determine who the legal parents are among
the many adults who might be involved in planning, conceiving, birthing, and raising
a child. In a growing practice, judges in several states have seized upon the idea of
psychological parenthood to award legal parent status to adults who are not related
to children by blood, adoption, or marriage. At times they have done so even over
the objection of the childs biological parent. Also, successes in the same-sex marriage
debate have encouraged group marriage advocates who wish to break open the
two-person understanding of marriage and parenthood.
Meanwhile, scientists around the world are experimenting with the DNA in eggs and
sperm in nearly unimaginable ways, raising the specter of children born with one
or three genetic parents, or two same-sex parents. Headlines recently announced
research at leading universities in Britain and New Zealand that could enable same-sex
couples or single people to procreate. In Britain, scientists were granted permission
to create embryos with three genetic parents. Stem cell research has introduced the
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Page 6
very real possibility that a cloned child could be bornand the man who pioneered
in vitro fertilization (IVF) treatment has already said in public that cloning should be
offered to childless couples who have exhausted other options. The list goes on.
Nearly all of these steps, and many more, are being taken in the name of adult rights
to form families they choose. But what about the children?
This report examines the emerging global clash between adult rights and childrens
needs in the new meaning of parenthood. It features some of the surprising voices
of the first generation of young adults conceived with use of donor sperm. Their
concerns, and the large body of social science evidence showing that children, on
average, do best when raised by their own married mother and father, suggest that
in the global rush to redefine parenthood we need to call a time-out.
Right now, our societies urgently require reflection, debate, and research about the
policies and practices that will serve the best interests of childrenthose already
born and those yet to be born. This report argues that around the world the state is
taking an increasingly active role in defining and regulating parenthood far beyond
its limited, vital, historic, and child-centered role in finding suitable parents for
needy children through adoption. The report documents how the state creates new
uncertainties and vulnerabilities when it increasingly seeks to administer parent-
hood, often giving far greater attention to adult rights than to childrens needs. For
the most part, this report does not advocate for or against particular policy pre-
scriptions (such as banning donor conception) but rather seeks to draw urgently
needed public attention to the current revolutionary changes in parenthood, to point
out the risks and contradictions arising from increased state intervention, and to
insist that our societies immediately undertake a vigorous, child-centered debate.
Do mothers and fathers matter to children? Is there anything specialanything
worth supportingabout the two-person, mother-father model? Are children com-
modities to be produced by the marketplace? What role should the state have in
defining parenthood? When adult rights clash with childrens needs, how should the
conflict be resolved? These are the questions raised by this report. Our societies will
either answer these questions democratically and as a result of intellectually and
morally serious reflection and public debate, or we will find, very soon, that these
questions have already been answered for us. The choice is ours. At stake are the
most elemental features of childrens well-beingtheir social and physical health
and their moral and spiritual wholeness.
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Page 7
Revolution de la filiation
Conflit mergent entre les droits des adultes et les
besoins des enfants
Sommaire Excutif
Aujourdhui, le modle parental compos dun pre et dune mre est assailli dans
son principe mme partout dans le monde.
Au Canada, presque sans dbat, la loi controverse ratifiant le mariage entre parte-
naires du mme sexe introduisait sans bruit la stipulation liminant le terme parent
naturel de toutes les lois fdrales, pour le remplacer par le terme parent lgal.
Ce changement dplaa brusquement le pouvoir de dfinir qui sont les parents dun
enfant, lenlevant la socit civile pour laccorder ltat, avec des consquences
encore inconnues.
En Espagne, aprs la lgalisation rcente du mariage homosexuel, le corps lgislatif
a chang les actes de naissance de tous les enfants espagnols, y inscrivant progni-
teur A et progniteur B au lieu de mre et pre. Ce changement efface les
mots mre et pre du premier document mis chaque enfant par ltat.
En Nouvelle-Zlande et en Australie, des instances lgislatives influantes ont pro-
pos que lon autorise les enfants conus en utilisant du sperme ou des ovules de
donneurs avoir trois parents. Mais ni lun ni lautre des deux pays ne sest pench
sur lventualit trs relle que ces trois parents pourraient se sparer et faire de lin-
trt de lenfant un sujet de litige.
Aux tats-Unis, les tribunaux dcident souvent qui sont les parents lgaux, parmi
les nombreux adultes impliqus dans le projet parental, dans la conception, la nais-
sance et lducation dun enfant. On voit de plus en plus souvent les juges de
plusieurs tats recourir au concept de parent psychologique pour accorder le
statut de parent lgal des adultes sans aucun lien de parent, de mariage ou
dadoption avec lenfant. Dans certains cas, ces jugements ont t prononcs mal-
gr lopposition des parents biologiques de lenfant.
De plus, les russites obtenues aux tats-Unis dans le dbat sur le mariage homo-
sexuel ont encourag les adeptes du mariage en groupe, qui dsirent abolir la
signification du mariage et de la filiation selon lesquels ces termes sappliquent
deux personnes.
En mme temps, des scientifiques dans le monde entier effectuent des expriences
invraisemblables sur lADN des ovules et du sperme, permettant dimaginer des
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Page 8
enfants ns avec un seul ou trois parents gntiques, ou avec deux parents du
mme sexe. Les gros titres des journaux annonaient rcemment des recherches
menes par de grandes universits en Angleterre et en Nouvelle-Zlande, dont le
but est de permettre des couples du mme sexe et des personnes clibataires
de procrer. En Angleterre, on a autoris les scientifiques crer des embryos ayant
trois parents gntiques. La recherche sur les cellules souches a introduit la possi-
bilit trs relle de voir natre un de ces jours un enfant clon; le scientifique
lorigine de la fertilisation in vitro (comme traitement de linfertilit) a dj affirm
en public que le clonage devrait tre offert des couples sans enfants pour qui les
autres alternatives sont restes inefficaces. Et ainsi de suite.
Presque toutes ces dcisions, comme beaucoup dautres, ont t prises au nom des
droits des adultes crer les familles quils dsirent. Mais quen est-il des enfants?
Ce rapport examine le conflit mondial mergent entre les droits des adultes et les
besoins des enfants dans les nouvelles dfinitions du statut parental. Le rapport fait
entendre les voix surprenantes de la premire gnration de jeunes adultes conus
en ayant recours au sperme de donneurs. Leurs proccupations, ainsi que les don-
nes abondantes en sciences sociales indiquant quen gnral les enfants se portent
le mieux quand ils sont levs par leurs propres mres et pres, suggrent quil
serait utile de marquer un temps darrt dans la course mondiale vers la redfinition
du parent.
Aujourdhui, il est urgent pour nos socits de rflchir, de dbattre et de mener des
recherches concernant les politiques et les pratiques qui serviront le mieux les
intrts des enfantsceux qui sont dj ns et ceux qui natront. Ce rapport fait valoir
le fait que partout dans le monde lEtat prend un rle de plus en plus actif dans la
dfinition et la rglementation du rle parental (bien au-del de sa fonction historique,
vitale et limite, axe sur lenfant, consistant trouver des parents appropris pour
les enfants qui en ont besoin). Le rapport dcrit la manire dont lEtat cre de
nouvelles incertitudes et vulnrabilits lorsquil tente de rgir la filiation, souvent en
portant une plus grande attention aux droits des adultes quaux besoins des enfants.
En gnral, le rapport ne sexprime ni pour ni contre des politiques particulires
(interdire la conception laide de donneurs, par exemple); il essaie plutt dattirer
lattention publiquedont on a un besoin urgentsur les changements rvolution-
naires sappliquant au statut parental, de souligner les risques et les contradictions
dcoulant dune intervention tatique accrue, et dinsister que nos socits entre-
prennent immdiatement un dbat dynamique ax sur lenfant.
Les mres et les pres sont-ils importants pour les enfants? Le modle mre-pre
offre-t-il des avantages qui mritent dtre appuys? Les enfants sont-ils des biens
produire pour le march? Quel rle devrait-on accorder ltat dans la dfinition du
statut parental? Lorsquil y a conflit entre les besoins des enfants et les droits des
adultes, comment doit-on le rsoudre? Ce rapport se penche sur ces questions. Nos
SER 189
socits se trouvent face un choix: ou bien elles rpondent ces questions de
manire dmocratique, aprs un srieux examen intellectuel et moral et des dbats
publics, sans quoi en peu de temps nous nous apercevrons quon a rpondu ces
questions notre place. Il y va des aspects essentiels du bien-tre des enfantsleur
sant physique et sociale, et leur integrit morale et spirituelle.
Vous trouverez une traduction franaise du rapport en consultant le site
http://www.americanvalues.org.
Page 9
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Page 10
Introduction
M
ANY CHANGES in marriage, reproduction, and family life in recent years have
had one feature in common: They have pushed the boundaries on who is
called a childs parent. Courts and the culture have at various times
determined all kinds of people to be parent figures in childrens lives, including
stepparents, parents unmarried partners, sperm donors, surrogate mothers, and
even extended family members or close family friends.
This broadening of the term parent first arose amid the steep rise in single-parent
childbearing and as a result of the divorce revolution. But more recentlyindeed,
many important developments have taken place in recent monthsthe redefinition
of parenthood is taking new forms as cultural attitudes continue shifting; as repro-
ductive technologies advance, access expands, and science continues pushing the
boundaries on baby-making; as increasing numbers of same-sex couples are openly
raising children, with many of them also advocating for marriage rights; as new
players enter the marriage debate, including advocates of group marriage; and as
the law struggles to catch up, often creating as many problems as it resolves.
Rather than striving to link the man and woman who conceive, bear, and raise a
child into one unit called the childs parents, todays trend toward redefinition
separates genetic, gestational, and social parenthood into increasingly fragmented
activities and separate legal terms.
1
In nations throughout the West and beyond,
expert commissions, courts, legal scholars, and medical groups are leading the way
in redefining parenthood, almost entirely without awareness of or influence from
other disciplines and the broader public. While the state has a vital role to play in
finding parents for needy children through adoption, today in many nations the state
is creating powerful new uncertainties and vulnerabilities as it seeks to redefine
parenthood for far broader categories of children.
Right now, the needs of childrenthose born and those yet to be bornare being
threatened by policies and practices that are transforming and fragmenting the
meaning of parenthood.
Redefining ParenthoodWhats Happening Around the
World Right Now
Events that form a revolutionary redefinition of parenthood are proceeding at break-
neck speed around the world.
In Canada, the law that recently legalized same-sex marriage nationally also qui-
etly erased the term natural parent across the board in federal law, replacing it
with the term legal parent.
2
With that provision, the federal understanding of
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parenthood for every child in the nation was changed in order to bring about the
hotly-debated legalization of same-sex marriage.
Also in Canada, in an amazingly contradictory pair of moves, in some provinces it
is now the right of an adopted child to know the identity of his or her biological
parents; whereas in the case of children conceived by sperm or egg donors, revealing
to the child the identity of his or her biological parents is a federal crime, punishable
by a fine, imprisonment, or both.
In Spain, after the recent legalization of same-sex marriage the National Civil
Registry struck the words mother and father from the first document issued to
every newborn by the state. Instead, all birth certificates will now read Progenitor
A and Progenitor B.
3
At the same time and in a strange coincidence, law commissions in three other
nations released reports in the spring of last year on assisted reproductive tech-
nologies. Each report makes radical headway in redefining parenthood.
In a report on New Issues in Legal Parenthood, the Law Commission in New
Zealand made the unprecedented proposal of allowing children conceived with
donor sperm or eggs to have three or more legal parents, with sperm or egg donors
allowed to opt in to parenthood if they wish.
4
In Australia, the Victoria Law Reform Commission proposed that access to donor
insemination services be expanded to same-sex couples and singles, as is currently
allowed in many nations including the United States (but which remains illegal in a
number of European and other nations). Their rationale was striking. The commission
argued that expanding donor insemination access to same-sex couples and singles
is vital because it will reduce social discrimination against children raised in these
kinds of families.
5
In a follow-up report, this commission also proposed that sperm
and egg donors be allowed to opt in as a childs third legal parent.
At the same time, in Ireland the Commission on Human Assisted Reproduction
stunned many by proposing that couples who commission a child through a surrogate
mother should automatically be the legal parents of the child, leaving the woman
who delivers the baby with absolutely no legal standing or protection should she
change her mind.
6
A dissenting member of the commission warned ominously, If
the surrogate mother resisted [handing over the baby], reasonable force could be
used.
7
Meanwhile, in India new guidelines on assisted reproductive technology issued in
June of 2005 by the Indian Council of Medical Research state that the child born
through the use of donor gametes [i.e., sperm or eggs] will not have any right what-
soever to know the identity of the genetic parents. The local news headline stated
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the new rules go a long way in curbing exploitationviewing the matter entirely
from the point of view of adults who give or receive sperm or eggs, but not from
the perspective of children who will be forever barred from knowing where they
come from.
8
Other steps governments are taking signal a greatly heightened level of state inter-
vention and increasing control over reproduction and family life.
In Britain, a recent law banning donor anonymity caused a purported drop in the
number of persons willing to donate sperm or eggs.
9
Soon thereafter the govern-
ment health service began an active campaign to recruit sperm and egg donors, no
longer just allowing the planned conception of children separated from one or both
biological parents, but now very intentionally promoting it.
10
In another example of active state support, in high-tax Denmark the state subsidizes
the practice of sperm donation by allowing the income earned by sperm donors to
be tax-exempt. The Danish company Cryos, one of the worlds largest sperm banks,
ships almost three-quarters of its sperm to individuals and couples overseasall
with the implicit support of the Danish taxpayer.
11
And in a recent, dramatic step,
the Danish parliament narrowly passed a law that gives lesbian couples and single
women the right to obtain free artificial insemination at publicly-funded hospitals.
12
In Vietnam, the state supported hospital is running short of voluntary sperm donors.
It is now considering setting up a community sperm bank in which those who
request donor sperm must supply a family member or friend who will donate sperm
to the bank for use by another couple. The increasing demand for sperm comes
from families where husband and wife are white collar workers, and single women
who want a baby but wish to remain unmarried.
13
In Australia, a law passed in 1984 that allows sperm donors to contact their over-18
offspring has now raised the prospect that, starting this year, young adults who were
conceived using donor sperm might receive a letter from the state alerting them to
the sperm donors wish to contact them. In Australia, as elsewhere, most young
people who were conceived with donor sperm were never told the truth by their
parents.
14
To help offset the potential shock, the state government in Victoria has
proposed a public advertising campaign warning all young adults that they could be
contacted by a sperm donor father they never knew about.
15
Meanwhile, in the United States the field of reproductive technology continues in an
almost entirely unregulated environment. Agonizingly difficult decisions are often
left to judges in local jurisdictions (with these cases sometimes rising to state
supreme courts). These courts all too frequently must decide who a childs parents
are, picking and choosing among the many adults who might be involved in plan-
ning, conceiving, birthing, and raising the child.
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Recently the California State Supreme Court heard three cases from lesbian couples
who used sperm donors to have children and then split up. In these cases the non-
biological mother figure (none of whom had adopted the child) was either denied
access to the child or wished to have no further financial obligations to the child.
The courts ruled in all three cases that the non-biological mother figure is like a
childs father and should be granted full parental status and held to the same
standard of rights and responsibilities.
16
The outcome has potentially far-reaching
implications not just for same-sex couples but for the many
heterosexual couples in stepfamilies
17
, as well as those
who might use reproductive technologies or temporarily
raise children together without marriage, adoption, or
other legal arrangements.
In Erie County, Pennsylvania, a judge recently had to
decide parentage in a case in which a surrogate mother car-
ried triplets for a 62-year-old man and his 60-year-old girlfriend. When the couple
failed to pick up the infants, the hospital initiated steps to put them in foster care. In
response, and eventually with the judges approval, the surrogate mother took the
children home and began raising them as her own. But the commissioning couple
continues to fight for access to the children (and the 62-year-old man has been
ordered to pay child support), while the college student who contributed her eggs
for their conception is asserting her parental rights as well.
18
In another case now before the Pennsylvania Supreme Court, a sperm donor was
ordered by a lower court to pay child support for twins conceived by in vitro fer-
tilization. The lower court said the mother and sperm donor had wrongly bargained
away the twins rights in agreeing that the sperm donor would not have responsi-
bilities for them. The high court is now being asked to overturn that ruling.
19
In response to these two cases lawmakers in Pennsylvania convened a joint sub-
committee on assisted reproductive technologies. An attorney who sits on the sub-
committee said, Its becoming common in todays society for a sperm donor, an egg
donor or a surrogate mother to be used in family-building, and its in the best
interest of everyone in this state to create a definitive pronouncement of who is a
legal parent and define the rights and responsibilities of those parents.
20
The article
reporting these developments framed the issue solely as a matter of protecting the
rights of adults including egg and sperm donors, surrogate mothers, and legal
parents. There was no consideration by the reporter of how these decisions might
affect children.
In Ohio, a recently proposed bill addresses the growing practice of embryo adop-
tion, in which a couple with an unused embryo created for infertility treatment
donates the embryo to another couple, who implant it in the woman and raise the
resulting baby as their own. The bill defines the birth mother, not the biological
...steps governments are taking
signal a greatly heightened
level of state intervention in
reproduction and family life.
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Page 14
mother, as the legal mother of the child, and says that the husband of the birth
mother who consents to the embryo adoption is the legal father.
21
While such rulings and proposals might bring clarity in specific scenarios, they also
create astonishing new uncertainties and questions for case law as an almost unimag-
inable range of adultsfrom a sperm donor to the husband of a woman implanted
with someone elses embryo to a surrogate mother or egg donor and even a parents
ex-girlfriend or ex-boyfriendcan be designated the legal parent of a child.
At the same time, the active public debate about legalizing same-sex marriage and
the increasing visibility of same-sex couples raising children contribute to new
uncertainties about the meaning of parenthood. These new uncertainties potentially
affect many children, not just the relatively small number of children raised by gay
and lesbian people.
In Massachusetts, nearly three years ago, a 4-3 decision by the State Supreme Judicial
Court legalized same-sex marriage. (It is notable that among all the laws, rulings, and
proposals discussed in this report, legalized same-sex marriage in Massachusetts is
among the very oldest.) In response to that court decision, the State Department of
Public Health changed the standard marriage certificate to read Party A and Party
B, instead of husband and wife, and proposed amending birth certificates used
for all children in Massachusetts to read Parent A and Parent B rather than
mother and father.
22
As in Canada and Spain, once same-sex marriage is legalized
some advocates immediately argue that legal understandings of parenthood for all
children must change, even to the point of erasing the words mother and father
from the foundational legal document issued to all children by the state.
23
In fact, same-sex couples, adoptive parents, and singles and infertile couples using
donors routinely petition to have one or both biological parents left off the birth
certificateand even to have non-biological parents included without going through
the process of adoption. In Quebec, when a woman in a same-sex civil union gives
birth, her female partner is presumed to be the father and can be registered as the
father on the childs birth certificate.
24
A similar ruling was recently made in Ontario,
with the judge noting that the testimony of non-biological mother figures who have
not been automatically recorded on birth certificates reveals a lot of pain and that
some find the requirement to adopt the child immoral.
25
The state of California
allows a second mother to be entered on the birth certificate as the childs father.
Last year, a New Jersey judge ruled for the first time in that state that the same-sex
partner of a woman who conceives with donor sperm has an automatic right to be
listed as a birth parent on the childs birth certificate without having formally to adopt
the child, just as the husbands of women who use donor sperm are listed.
26
Earlier
this year, Virginia issued a birth certificate to a lesbian adoptive couple that reads
Parent 1 and Parent 2 after the couple rejected having one of their names put in
the blank for father.
27
A similar suit was just filed in Oregon.
28
More are likely.
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Around the world, the state is a fast-growing, active player in the field of redefining
parenthood. This redefinition increasingly emphasizes adults rights to children
rather than childrens needs to know and be raised, whenever possible, by their
mother and father. The state is becoming routinely involved in the practices of
regulating, apportioning, and resolving disputes involving fertility and parenthood.
This global shift is encountering active resistance in only a few places.
Perhaps the most surprising development is in France
where a Parliamentary Report on the Family and the
Rights of Children, published in January 2006, took a rad-
ically different stance. The reports authors note critically
that the desire for a child seems to have become a right
to a child and argue when childrens lives are at issue,
legislators must act very cautiously and calmly seek social
consensus. The reports authors recommend denying
the legalization of same-sex marriage, citing concerns about the identity and devel-
opment of children when the law creates a fictitious filiation or a situation in
which there are two fathers, or two motherswhich is biologically neither real nor
plausible. Citing the precautionary principle,
29
the reports authors conclude
that there must continue to be a medical justification for assisted procreation
under the rubric of a father, a mother, a child, and that the ban on surrogacy
should stand.
30
In another notable development, Italys voters last summer defeated a referendum
that would have loosened their restrictive fertility law. The law that was upheld bans
the use of donor sperm or eggs and allows assisted reproductive technology only
for married couples. In a somewhat less stringent example, Taiwans cabinet last
year approved an assisted reproductive technology law that restricts the use of such
technology to infertile couples, bans receiving donor sperm and eggs from close
relatives, and does not allow sperm or eggs from the same donor to be used by
more than two couples. But examples like these are rare.
31
How the Global Redefinition of Parenthood Threatens
Childrens Identity
Why should we be concerned about the many rulings, laws, and proposals around
the world that are aimed at redefining parenthood?
A good society protects the interests of its most vulnerable citizens, especially
children. Right now, the institution that is most core to childrens very survivalthat
of parenthoodis being fundamentally redefined with the state giving its implicit
support and at times leading the way. In law and culture, parenthood is increasingly
understood to be an institution oriented primarily around adults rights to children
...in such rulings an almost
unimaginable range of adults
can be designated the
legal parents of a child.
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rather than childrens need for their mother and father. These extraordinary moves
are being made largely absent any real public awareness or debate.
The common thread running through many of these decisions is the adult right to
a child. These rights claims are important. The desire for a child is a powerful force
felt deep in the soul. The inability to bear a child of ones own is often felt as an
enormous loss, one that some grieve for a lifetime. These desires must be responded
to with respect and compassion. The claim that medicine and society should help
those who cannot bear children is a legitimate one.
But the rights and needs of adults who wish to bear children are not the only part
of the story.
Children, too, have rights and needs. For example, the United Nations Convention
on the Rights of the Child, ratified in 1989, states that the child shallhave the right
from birth to a name, the right to acquire a nationality and, as far as possible, the
right to know and be cared for by his or her parents.
32
The authors of the convention
understood several key features necessary to human identity, security, and flourish-
inghaving a name, being a citizen of a nation whose laws protect you, and, when-
ever possible, being raised by the two people whose physical union made you.
Adults who support the use of new technologies to bear children sometimes say that
biology does not matter to children, that all children need is a loving family. Yet
biology clearly matters to the adults who sometimes go to extreme lengths
undergoing high-risk medical procedures; procuring eggs, sperm, or wombs from
strangers; and paying quite a lot of moneyto create a child genetically related to
at least one of them. In a striking contradiction, these same people will often insist
that the childs biological relationship to an absent donor father or mother should
not really matter to the child.
Of course, there is a very real and urgent role for the state to play in defining
parenthood. Some biological parents present a danger to their children or are
otherwise unable to raise them. Adoption is a pro-child social institution that finds
parents for children who desperately need them. Adoption is a highly admirable
expression of altruistic love, a kind of love that transcends our hardwired tendencies
to protect our blood relations above all others. But the existence of legal adoption
was never intended to support the argument that children dont care who their
fathers and mothers are, or to justify the planned separation of children from bio-
logical mothers and fathers before the children are even conceived.
Certainly, biology is not everything. It does not and should not determine the full
extent or depth of human relationships. Biological parents are tragically capable of
harming their children, and some children are better off removed from these par-
ents (though, as we will see, children on average are far safer with their biological
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parents than with unrelated adults). But the actions and testimony of children and
adults often powerfully suggest that biology does matter.
In the current rush to redefine parenthood, we must stop to ask critical, child-
centered questions: Are childrens understandings of parenthood as flexible as
those who pose these issues mainly as a matter of adult rights believe them to be?
How do children feel about the brave new world of parenthood? Does how they
feel matter?
The Childs Point of View
Emerging Voices from Children
Children raised without their own married mother and
father often have perspectives about their lives that are radically different from how
the legal scholars, courts, and would-be parents expected they would feel. For
example, studies on the inner lives of children of divorce are showing an enormous
downside for children that was never considered in the heady, early days of the no-
fault divorce revolution.
33
To be perfectly clear, the question is not whether children love the parents who
raise them. Children almost universally and unquestioningly love their parents,
whether their parents are married, divorced, single, gay or straight. Rather, the
question is how children feel and how they make sense of their identities when
their mother or father (or both) is absent from their daily lives.
The first generation of donor-conceived children who are now coming of age form
a remarkable case study to explore this question. Most in this first generation were
conceived by married heterosexual couples using donor sperm. Anecdotally,
many are now speaking out about the powerful impact on childrens identity
when adults purposefully conceive a child with the clear intention of separating
that child from a biological parent.
34
These young people often say they were
denied the birthright of being raised by or at least knowing about their biological
fathers. They say that this intentional denial profoundly shapes their quest to
understand who they are.
Donor-conceived teenagers and adults are forming organizations,
35
are frequently
quoted in news articles,
36
and are using the Internet to try to contact their sperm
donors and find half-siblings conceived with the same sperm.
37
They hail from the
United States, Canada, Australia, Britain, Japan, and elsewhere. Numbers are hard to
come by, but estimates are that the number of children now born in the U.S. each
year through artificial insemination range from 30,000 to 75,000 and that about 3,000
each year are conceived using donor eggs.
38
While the numbers arguably are small,
Of course, there is
an urgent role for the state to
play in defining parenthood
through adoption.
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Page 18
they are growing, and the stories these young people tell raise questions not only
about their own experience but also about the prospects for the next generation of
children born of still more complex reproductive technologies.
Donor-conceived young people point out that the informed consent of the most
vulnerable partythe childis not obtained in reproductive technology procedures
that intentionally separate children from one or both of their biological parents.
They ask how the state can aid and defend a practice that denies them their
birthright to know and be raised by their own parents and that forcibly conceals half
of their genetic heritage. Some call themselves lopsided or half adopted.
39
At least
one uses the term kinship slave.
40
Some born of lesbian or gay parents call them-
selves queer spawn, although others in the same situation find the term offensive.
41
No studies have been conducted focusing on these young peoples long-term
emotional experience.
42
Clearly, rigorous long-term studies need to be done. For
now, we should listen to their compelling voices.
Narelle Grech, an Australian donor-conceived woman in her early twenties, asks,
How can you create a child with the full knowledge that he or she will not be able
to know about their history and themselves? She wonders what social message the
practice of donor conception gives young men: Will they think its OK to get a
woman or girl pregnant and that it would be OK to walk away from her, because
after all, biology doesnt matter?
A fellow Australian, Joanna Rose, asks why everyone flips out when the wrong
baby is taken home from the hospital, yet assumes that donor-conceived children
are just fine. She argues: Our need to know and be known by our genetic rela-
tives is as strong and relevant as anyone elses. She writes, movingly, I believe
that the pain of infertility should not be appeased at the expense of the next gen-
eration.
43
In interviews, donor-conceived young adults often say something like this: My
sperm donor is half of who I am. One young woman known as Claire is believed
to be the first donor offspring to benefit from open-identity sperm donation and
have the ability to contact her father upon turning 18. She says she wants to meet
her donor because she wants to know what half of me is, what half of me comes
from.
44
Eighteen-year-old Zannah Merricks of London, England says, I want to
meet the donor because I want to know the other half of where Im from.
45
Lindsay
Greenawalt, a young woman from Canton, Ohio who is seeking information about
her sperm donor, says, I feel my right to know who I am and where I come from
has been taken away from me.
46
Eve Andrews, a 17-year-old in Texas, plans to ask the California sperm bank that
aided in her conception to forward a letter to her donor when she turns 18.
Theres a lot of unanswered questions in my life and I guess I want the answers,
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she explains. By contrast, her 51-year-old mother, interviewed for the same story,
says, As a woman dealing with the prospect of infertility, all you want is that
baby. It never even occurred to me this child might want to find her biological
father someday.
47
One young man, a 31-year-old doctor in Japan, learned that he was conceived by
donor sperm when he examined his parents white blood cell group while studying
medicine. The most painful thing was the fact that my
parents didnt tell me for 29 years, he said. Unless I was
told by my parents, I couldnt even exercise my right to
know my biological origin.
48
A 14-year-old girl in Pennsylvania wrote to Dear Abby after
finding out she was conceived with donor sperm. In just a
few sentences she identified some of the enormous identity
issues that confront donor-conceived young people and that are now a challenge to
our society. She wrote: It scares me to think I may have brothers or sisters out
there,
49
and that he [my father] may not care that I exist. This young teenager,
struggling alone with feelings of abandonment, grief, and confusion, poignantly
challenged the current legal and social position on this issue: I dont understand
why its legal to just donate when a child may be born.
50
Some observers respond to the voices of donor-conceived adults by saying that
there is an inherent contradiction in their argument. These observers say that donor-
conceived persons who question the practice of donor conception are wishing away
their own existence, and that without the use of a sperm or egg donor or surrogate
these young people would not be alive. I find this response highly insensitive. All
of us, no matter how we arrived here, should be able to share our stories and
struggles in an atmosphere of respect and dignity without being told that we are
irrationally ignoring the process that gave us life or are failing to show sufficient
appreciation for our life.
51
The Social Science Evidence Suggesting the Importance of Biological
Parents
From a social scientific point of view, what do we know about childrens experi-
ences when they do not grow up with their own mother and father? In many areas
we know a great deal. In some, we need to learn more.
In recent decades a powerful consensus among social scientists has emerged about
the benefits of marriage for children. The New York Times not long ago reported:
From a childs point of view, according to a growing body of social science
research, the most supportive household is one with two biological parents in a low-
conflict marriage.
52
Donor-conceived young adults
often say something like this:
My sperm donor is
half of who I am.
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Children raised by divorced or never-married parents face an increased risk of liv-
ing in poverty, failing in school, suffering psychological distress and mental illness,
and getting involved in crime. Children raised outside a married family are less likely
to graduate from college and achieve high-status jobs. When they grow up, they are
more likely to divorce or become unwed parents.
In terms of childrens physical health and well-being, marriage is associated with a
sharply lower risk of infant mortality, and children living with their own married
parents are more physically healthy, on average, than children in other kinds of fam-
ilies. Most tragically, children not living with their own two married parents are at
significantly greater risk of child abuse and suicide.
53
Increasing numbers of people are realizing that marriage has important benefits for
children. What many do not know is that there is something about the marriage of
a childs own mother and father (as opposed to a remarriage) that on average brings
these benefits. On many important indicators of child well-being, such as teen
pregnancy, educational failure, delinquency, and child abuse, children raised in
married stepparent families look more like children of single parents than children
raised by their own, married mother and father.
54
Some who advocate for legalized same-sex marriage say that it will be good for
children because the children will now have two parents. But the stepfamily data
suggest it may not be that simple. We dont know how much the poorer outcomes
in stepfamilies are due to the history of dissolution and other unique problems facing
stepfamilies and how much is due to the child being raised in a home with a non-
biologically related stepparent.
55
Most stepparents are without question good people who do their very best raising
the children in their care, but it is vital for those shaping family policy to be
acquainted with the large body of research showing that children raised in the care
of non-biologically-related adults are at significantly greater risk, in particular of
abuse. Many are not aware of the body of research showing that mothers boyfriends
and stepfathers abuse children more often on average than fathers do, with children
especially at risk when left in the care of their mothers boyfriends. More than
seventy reputable studies document that an astonishing numberanywhere from
one third to one halfof girls with divorced parents report having been molested or
sexually abused as children, most often by their mothers boyfriends or stepfathers.
56
A separate review of forty-two studies found that the majority of children who were
sexually abusedappeared to come from single-parent or reconstituted families.
57
Two leading researchers in the field conclude, Living with a stepparent has turned
out to be the most powerful predictor of severe child abuse yet.
58
The fields of evolutionary biology and psychology yield some insights into why
children are, on average, far safer with their biological parents. David Popenoe, a
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Page 21
sociologist at Rutgers University, sums up the research this way: From the per-
spective of evolutionary psychology, the organization of the human nuclear family
is based [in part on]a predisposition to advance the interests of genetic relatives
before those of unrelated individuals, so-called inclusive fitness, kin selection, or
nepotism.
59
With respect to children, this means that men and women have likely
evolved to invest more in children who are related to them than in those who are
not.
60
The world over, such biological favoritism seems to be the rule.
61
Of course, to recognize that adults tend to favor their
biological children is not to say that this predisposition is
necessarily or always a good thing. Rather, it is to recog-
nize that this tendency is highly common and probably
even hardwired, or biologically primed, into humans.
Ideally, all of us would be as deeply committed to and
concerned for other peoples children as we are for our
own, but practically speaking the human race is not there yet.
The example of adoption, however, remains an inspiration. When the state carefully
screens prospective adoptive parents and these parents receive social support for
their role as parents, and particularly when adopted children can be raised from
birth by parents who are committed to one another over the long haul, the out-
comes for those children dont look much different from those raised by their own
married parents and are almost certainly better than those being raised in an
unwanted, abusive, or neglectful environment. So again, we see that while biology
is not everythingbiological parents can fail their children, and adoptive parents
are generally highly committed and loving parentsin both the sciences and in the
voices of children we learn that biology does matter.
What does the research on non-biological parents and parent figures, including those
found in stepfamilies and other alternative family structures, mean for children being
raised by same-sex parents? We dont know, at least not yet. The existing research on
same-sex parenting is limited because same-sex couples raising children comprise a
very small part of the overall population and are only recently becoming more visible.
There have been a number of scholarly reviews of the literature on same-sex par-
enting.
62
One of the most thorough was prepared by Steven Nock, a sociologist at
the University of Virginia, who was asked to submit a brief for a major same-sex
marriage case in Canada. After reviewing several hundred studies he concluded that
all of the articles contained at least one fatal flaw of design or execution and not
a single one of those studies was conducted according to general accepted scientific
standards of research.
63
Limitations and design flaws that he and other reviewers have noted include: a vir-
tual lack of nationally representative samples used; limited outcome measures
while biology is not every-
thing, in both the sciences and
the voices of children we learn
that biology does matter.
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Page 22
(mostly of interest to developmental psychologists rather than to sociologists who
study the family); frequent reliance on a mothers report of her parenting abilities
and skills rather than objective measures of the childs well-being; and a virtual lack
of long-term studies that follow children of same-sex parents to adulthood. But the
biggest problem by far is that the vast majority of these studies compare single les-
bian mothers to single heterosexual mothersin other words, they compare chil-
dren in one kind of fatherless family with children in another kind of fatherless
family.
64
How does the long-term experience of children raised by partnered lesbian moms or
gay dads compare with those raised by their own mom and dad? We dont know yet.
But we do know that compared to children in many other alternative family forms
children of divorce, never-married heterosexual parents, stepfamilies, and those with
single mothersthose children who are raised by their own married mother and
father in a low-conflict marriage are, on average, significantly better off.
65
Similarly, with regard to children conceived with donor sperm, a donor egg, or a
surrogate mother, as yet there are no data on these childrens long-term, emotional
well-being. Researchers should listen to the stories that are beginning to emerge and
undertake rigorous studies of their experiences.
We have more to learn. But evidence and sensitive observations of childrens lives
strongly suggest the importance to children of recognizing their need to be raised,
whenever possible, by their own mother and father.
Redefining ParenthoodWhats Next?
Increasing Slippage in the Meaning of Fatherhood and Motherhood
The redefinition of parenthood is shaping our culture and our legal system in ways
that contribute to further deep uncertainties in the meanings of fatherhood and
motherhood.
Evidence of this new uncertainty is found in rulings, proposals, and stories from
around the world. In Australia, sperm donors now have the right to contact their
over-18 progeny. But who are these men? Are they sperm donors, or are they fathers
who have rights to know their children?
In New Zealand, the law commission proposed that sperm and egg donors be
allowed to opt in to legal parenthood if they wish. Who are these people? Are they
donors? Are they legal parents? If these biological parents can opt in and out of
responsibility to children, as it pleases them, what is the rationale for not allowing
other biological parents to do the same thing?
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The Washington Post Magazine recently featured a story in which a woman who
bore two children from the same anonymous sperm donor located him and brought
the children across the country to meet him when they were 7 and 3 years old.
66
They stayed for a week in his home. Since that time the mother has legally changed
the childrens names (making the donors surname their middle names) and desig-
nated him their guardian if she were to die. She has the children call him Daddy
but there are no definite plans for the future. An unknown number of other women
also conceived children with his sperm. For this 7 year old
and 3 year old, is this man a father? A sperm donor?
Something else? Who decides?
Last summer in Britain a new website was started
www.parentsincluded.com. The website is intended for
lesbian and single women who wish to bear a child using
donor sperm and want both parents to play a role in the
childs life. Potential sperm donors who wish to have some kind of relationship with
the resulting child are invited to enroll. If the desires of a lesbian or single woman
and a sperm donor to share a child raising arrangement coincide, bingo! They can
set up a broken family for their child before the child is even conceived.
67
A similar
site for lesbians and gay men exists in Canada. Called the LGBT Parent
Matchmaker, it helps those in the Toronto area who wish to locate and pair off with
one or more opposite sex partners with whom they can conceive and co-parent
a child.
68
In another example, last summer in the U.S. a classified ad ran on a West
Hollywood news website that read: I am a single mom who wants to have another
baby, but does not wish to use anonymous donor sperm. If you would like to be a
father with visitation rights, send a picture and introductory letter to Kelly W.
69
Even the meaning of the term sperm donor is in flux. In some arenas sperm
donors are being equated with fathers. In other situations sperm donor has
become a term of opprobrium, hurled by women at the ex-boyfriends who are the
fathers of their children. In one article from Florida a teenage girl refers to the ex-
boyfriend who got her pregnant as not a father but the sperm donor.
70
In an
article from the Philippines a womans friends refer to her ex-boyfriend, the father
of her child, as a mere sperm donor.
71
The term apparently signals that the man is
meaningless to them (and, they most likely hope, to their children). It is a cutting
put-down, equating a man they probably once cared for with nothing more than a
minimal and fairly crude biological product.
Yet by far the most striking and potentially far-reaching development signaling
slippage in the meaning of motherhood and fatherhooda development already
being witnessed in numerous courtsis the increasing recognition of psychological
parenthood or de facto parental status. In the United States at least ten states,
including Washington, California, Maine, Massachusetts, New Jersey, and Wisconsin,
now allow someone with no biological or adoptive relationship to a child (and no
Are these men sperm donors,
or are they fathers who
have rights to know
their children?
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marital relationship to a childs parent) to be assigned parental rights and responsi-
bilities as a psychological or de facto parent. To determine retrospectively whether
an adult was a parent in a childs life, the courts examine indications such as
whether the adult lived in the same household as the child, was encouraged to act
as a parent by the childs existing parent, had acted like a parent without expecting
financial compensation, and had spent enough time with the child to have bonded
with him or her.
72
In many of these cases the petitions are brought by ex-partners
who charge that the childs existing parent is denying their rights to the child. In
other cases the childs existing parent charges that the ex-partner is now shirking
parental responsibilities. These cases typically concern same-sex partners, but they
also have serious, as yet unknown implications for the many heterosexuals who are
or have been a childs stepparent,
73
or who have been a live-in partner.
In Britain, in a chilling, recent decision, a court ruled that two sisters ages 4 and 7
must be removed from their biological mother. Primary care was awarded instead
to her ex-partner, another woman with no biological or legal relationship to the chil-
dren. The decision was made after the biological mother violated a visitation order
and fled with the children to another part of the country. In the decision, one judge
(who nevertheless agreed with the order) expressed her qualms: I am very con-
cerned at the prospect of removing these children from the primary care of their
only identifiable biological parent who has been their primary carer for most of their
young lives and in whose care they appear to be happy and thriving.
74
Advocates of assigning legal rights and responsibilities to psychological parents
argue they have the best interests of the child in mind. The law, they say, should
not allow biological or adoptive parents to deny their child a relationship with
someone who the child has come to see as a mother or father, nor should it allow
someone who has acted as a parent to evade those duties after the adults relation-
ship ends.
This concern is well-intended but woefully misguided, because it ignores an existing
option that is far preferable for children. Even without same-sex marriage rights,
most states in the U.S. allow second-parent adoption by gay and lesbian partners.
In most of the cases that end up in court the second parent, for whatever reason,
did not exercise the option to adopt. Perhaps the couple could not agree on the
adoption. Perhaps the second parent was uncertain what level of responsibility he
or she wanted to take on. Perhaps they just never got around to it. (Or, perhaps
they lived in a state that does not allow or readily facilitate second-parent adoption
by same-sex couples, which I believe speaks far more to the need to expand second-
parent adoption access than it does to create an entirely new, retrospective category
called psychological parent.)
In contrast to the sometimes vague, gradual ways that parents can introduce new
partners into their childs life, even asking the child to call that person Mom or
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Dad, and the sudden ways in which these same parents can at times change their
minds if the relationship goes sour, the clearly defined (and in the best interests of
the child, appropriately onerous) process of adoption is the laws best way of pro-
tecting childrens interests and their relationships with both parents should their
parents break up. As a legal process, adoption is proactive, rigorous, and clear. The
child, the childs other parent, their community and the state know precisely when
the adult in question is the childs parent and when he or she is not. Once that
adult becomes an adoptive parent an array of laws and
norms clearly define his or her appropriate role in the
childs life. Adoptive parents cannot pass in and out of
childrens lives. Their status is understood to be perma-
nent and the legal and social consequences for trying to
forsake that status are clear. For all these reasons, adop-
tion is in general a far better way to protect children than
routinely asking judges to determine whether an adult in
the past met certain subjective criteria to qualify as a par-
ent, especially when the judge acts over the objections of the childs existing bio-
logical or adoptive parent.
75
In the brave new world of redefined parenthood, sperm donors might or might not
be fathers.
76
Mothers girlfriends, and even ex-girlfriends, can be mothers (or
fathers!). Despite their biological or gestational relationship to the child, egg donors
and surrogates are usually not considered mothers, but they can be.
77
Absent fathers,
when they anger their ex-girlfriends, can be reduced rhetorically to mere sperm
donors. But generally unlike sperm donors, the state holds them accountable for
child support for years to come.
What does father mean? What does mother mean? Who decides? How do children
feel about these decisions?
Cloning and Same-Sex Procreation
Not that long ago the specter of reproductive cloning induced gasps of horror in
nearly everyone. No longer.
Despite the dramatic fall from grace of South Korean cloning researcher Hwang
Woo-suk, research on cloning is proceeding with increasingly broad public support
in many states and nations around the world.
78
The same month that Hwang Woo-suk
made the now-discredited announcement that he had created 11 new stem cell lines
derived from cloned human embryos, a team of scientists at Newcastle University in
Britain announced that they had created cloned human embryos, one of which grew
in the laboratory for five days. At the time, the South Korean achievement made
front-page headlines around the world but the British news a week later barely
elicited a yawn. Cloning embryos was already old news.
Advocates of psychological
parenthood say they have
the best interests of the
child in mind.
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These researchers are pursuing whats known as therapeutic cloning, meaning that
cells are farmed from the cloned embryos before allowing them to expire. Many
nations have banned reproductive cloning but allow varying degrees of therapeutic
cloning. Yet the only difference between therapeutic and reproductive cloning is
whether the cloned embryo is implanted in a womans womb.
79
The technology to
implant the embryoin vitro fertilizationhas been in increasingly widespread use
since 1978.
Has anyone implanted a cloned embryo in a womans womb? A fringe group called
the Raelians has claimed to have done so but the reports have not been confirmed.
So far, no reputable scientist has announced doing so. But how long will it be?
An astonishing article ran last spring in Britains Guardian newspaper, headlined,
Process holds out hope for childless couples. The process is reproductive cloning.
The experts quoted at a conference who support this claim are not nobodies.
Professor Robert Edwards, who pioneered in vitro fertilization and created the
worlds first test tube baby, Louise Brown, in 1978, said that reproductive cloning
should be considered for patients who have exhausted all other forms of treatment.
For example, it would be helpful for people who cannot produce their own sperm
or eggs.
80
At the same conference, James Watsonyes, the James Watson who with Francis
Crick discovered the structure of DNAargued there is nothing inherently wrong
with cloning. He went on: Im in favour of anything that will improve the quality
of an individual familys way of life.
Critics point out that cloning experiments in animals have led to numerous stillbirths
and deformed animals before succeeding in a live, apparently healthy animal (and
even those animals have sometimes developed serious health problems later on).
To those critics, Professor Edwards responds that genetic screening of embryos will
take care of all that. With enormous confidence in the ability of medical science to
detect every problem in an embryoand with casual acceptance of tossing out all
embryos that are not up-to-snuffhe remarked that very soon only healthy
embryos will be implanted during assisted reproduction. The birth of a child with
defects after fertility treatment will be a thing of the past.
He concluded with conviction: If we stand back and say it cant be done, this is
letting our patients down.
81
The potential use of cloning techniques to aid in assisted reproduction is only one
example of the stem cell research field growing ever closer to the fertility industry.
In another example, an ongoing problem for stem cell researchers is the shortage
of human eggs required for their work. Eggs can be retrieved from women only by
putting them through a risky regimen of drugs and surgery.
82
The same scientists in
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Britain who recently cloned a human embryo announced a plan one week later to
ask women undergoing infertility treatment to donate their spare eggs for stem cell
research. The proposal has been approved by the university ethics committee and
is under consideration by Britains fertility regulatory authoritypotentially opening
the door for a womans doctor, her most trusted advisor in her often years-long
effort to become pregnant, to ask her to donate her unused eggs for experiments
with therapeutic cloning.
83
Unfortunately, it doesnt stop there.
Scientists truly on the cutting edge are now especially
interested in creating artificial sperm and eggs and fusing
them in unexpected ways to create human embryos for
implantation in the womb.
Last summer researchers at Sheffield University in Britain announced that they are
now able to develop human embryonic stem cells into early forms of cells that can
become eggs and sperm. If they succeed their work could mean, for example, that
a single man could provide both the egg and sperm for fertility treatment, or that
same-sex couples would no longer have to rely on sperm or egg donorsinstead,
they could have children genetically related to both of them.
84
In headlines around the world news articles were frank about the implications: The
consequences of such work might even mean gay couples or single men could pro-
duce children, said the Guardian story.
85
The technique raises the possibility that
gay couples will be able to have biological children, said the story in the New
Zealand Herald.
86
An article about the Sheffield research and similar work under-
way at Monash University in Australia was headlined: Doing away with donors.
87
In a story filed from Copenhagen that ran on a U.S. advice and support website for
gay and lesbian parents, the headline was, Stem cell research may provide hope to
gay couples. The article said the research is huge news for the gay and lesbian
community.
88
At the same time, last fall a team in Edinburgh announced it had tricked an egg into
dividing and created the first human embryo without a genetic father.
89
That same
week British scientists at Newcastle University were granted permission to create a
human embryo with three genetic parents.
90
Over and over, reports about these breakthroughs emphasize the urgent and fun-
damental importance of assisting adults who wish to bear children. At most, some
ethicists are quoted who might raise concerns about health risks. But the biggest
issues are almost never raised: the long-term physical and emotional conse-
quences for the children who might result; the movement toward a society that
views some human lives as fit for laboratory experimentation for the benefit of
An article was headlined
Process holds out hope for
childless couples. That process
is reproductive cloning.
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others; the larger consequences for children and society when parenthood is
increasingly viewed mainly as a means to fulfill adult desiresmediated, defined,
and administered by the state.
91
Group Marriage: Polyamory and Polygamy
Whatever ones feeling about the legalization of same-sex marriage, and however
emphatically most advocates of same-sex marriage say they do not support group
marriage, recent events make clear that successes in the same-sex marriage move-
ment have emboldened others who wish to borrow the language of civil rights to
break open the two-person understanding of marriage and, with it, parenthood.
92
These efforts are emerging from at least two surprising directions.
93
Polyamorists are perhaps the newest, most unfamiliar players on the scene.
Polyamory (meaning many loves) is different from polygamy (meaning many
marriages). Polyamory involves relationships of three or more people, any two of
whom might or might not be married to one another. Polyamorous people variously
consider themselves straight, gay, bisexual, or just plain poly, while polygamists
are generally heterosexual. Polyamorists distinguish themselves from the swingers
of the 1970s, saying that their own relationships emphasize healthy communication
or what they call ethical non-monogamy.
Polyamorous unions have been around for a whileprobably for a long whilebut
they and their supporters are now seeking increasing visibility and acceptance.
Indeed it seems one can hardly pick up a major newspaper without reading about
them. A recent Chicago Sun-Times article mentioned the Heartland Polyamory
Conference to be held this summer in Indiana (a similar Midwestern polyamory
conference was held two years ago near the Wisconsin Dells).
94
A Chicago Tribune
article not long ago featured John and Sue, a married couple, and Fred, Peggy, and
Bill who share their bedthe reporter termed them an energetic bunch of
polyamorists.
95
And there are routinely articles about polyamory in alternative peri-
odicals such as the Village Voice and Southern Voice and, increasingly, campus
newspapers.
Yet support for polyamory is not just found among the fringe types; notably, the
topic is emerging at the cutting edge of family law and advocacy. In a recent report
on family law, Daniel Cere of McGill University cites examples including a
University of Chicago Law School professor, Elizabeth Emens, who last year pub-
lished a substantial legal defense of polyamory in a New York University law review;
a major report, Beyond Conjugality, issued by the influential Law Commission of
Canada which wondered whether legally recognized relationships should be limited
to two people, and in An Introduction to Family Law, published by Oxford
University Press, a British law professor who notes quizzically, The abhorrence of
bigamy appears to stemfrom the traditional view of marriage as the exclusive
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locus for a sexual relationship and from a reluctance to contemplate such a rela-
tionship involving multiple partners.
96, 97
Meanwhile, the Alternatives to Marriage Project, whose leaders are featured often by
mainstream news organizations in stories on cohabitation and same-sex marriage,
includes polyamory among its hot topics for advocacy.
98
Among religious organi-
zations the Unitarian Universalists for Polyamorous Awareness hopes to make their
denomination the first to recognize and bless polyamorous
relationships.
99
Advocates for polyamory often explicitly mimic the lan-
guage used by supporters of gay, lesbian, and bisexual
people. They say they must keep their many loves in the
closet. That they cannot risk revealing their personal lives
for fear of losing their jobs or custody of their children.
That to reveal their inner poly nature is coming out of the closet. That being poly
is just who they are.
One potential complication is children. Websites for practitioners of polyamory
devote considerable space to the challenges of being a poly parent.
At LiveJournal.com, one mom says, Polyamory is what my kids know. They know
some people have two parents, some one, some three and some more. They hap-
pen to have four. Honestly? Kids and polyamory? Very little of it effects [sic] them
unless youre so caught up in your new loves youre letting it interfere with your
parenting.
100
Another older mom advises a young poly mother-to-be who isnt sure how to
manage a new baby and her poly lifestyle: Having a child and being poly isnt
exactly a cakewalk, butit is possible. Sometimes it means that you take the
baby with you to go see your OSO [other significant other], or your OSO spends
more time at the house with you, your husband, and the baby, and sometimes
things will come up where plans have to be cancelled at the very last minute
because baby is sick or something. There is a lot of patience that is needed
from all parties involved, but it can be done. The first six months are extremely
hard. (italics hers)
101
Another woman is offended by her best friends lack of support for her polyamorous
relationship that involves a couple who have a six-year old daughter. She writes,
No matter how happy and content that kid is, according to my friend we and her
parents are undoubtedly wreaking some serious damage on her by not completely
concealing our relationship from her. She sighs: Sometimes intelligent, goodhearted,
rational people who know you fairly well can still hold rather irrational and bigoted
opinions.
102
Polyamory websites devote
considerable space to the
challenges of being
a poly parent.
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A pro-poly website despairs: One challenge that faces poly families is the lack of
examples of poly relationships in literature and media.
103
A sister site offers the
PolyKids Zine. This publication for kids supports the principles and mission of the
Polyamory Society. It contains fun, games, uplifting PolyFamily stories and lessons
about PolyFamily ethical living. Its book series includes titles such as The Magical
Power of Marks Many Parents and Heather Has Two Moms and Three Dads.
104
No one can predict the legal future of polyamory. But in a startling development,
and coming from a very different direction, another cultural assault on the two-
person understanding of marriage and parenthood is resurgingpolygamy.
The debut this spring of HBOs new television series, Big Love, which features a
fictional, in some ways likeable polygamous family in Utah, has suddenly propelled
polygamy to the front pages and put the idea of legalized polygamy in play in
some surprising quarters. An article in the March issue of Newsweek, headlined
Polygamists Unite! quotes an activist saying, Polygamy is the next civil rights battle.
He argues, If Heather can have two mommies, she should also be able to have two
mommies and a daddy.
105
That weekend on the Today show hosts Lester Holt and
Campbell Brown gave a sympathetic interview to a polygamous family.
During that same month, the New York Times devoted much attention to the subject
of polygamy. One article featured several polygamous women watching Big Loves
first episode, sharing their perspectives such as: [Polygamy] can be a viable alter-
native lifestyle among consenting adults.
106
In another article an economist snick-
ered that polygamy is illegal mainly because it threatens male lawmakers who fear
they wouldnt get wives in such a system.
107
In a separate piece, columnist John
Tierney argued that polygamy isnt necessarily worse than the current American
alternative: serial monogamy. He concluded, If the specter of legalized polygamy
is the best argument against gay marriage, let the wedding bells ring.
108
Not to be
outdone, the cover of the June 19, 2006 New Yorker magazine featured three smiling
brides and a beaming groom driving away in a convertible with just married
scrawled across the trunk.
It is not just Big Love that is putting polygamy in play in the West. In a development
that shocked many Canadians last winter, two government studies released by the
Justice Department recommended the decriminalization of polygamy, with one
report arguing the move was justified by the need to attract more skilled Muslim
immigrants. And in Canada and the U.S., a significant number of todays legal scholars
are arguing, as one columnist summarized, that the abuses of polygamy flourish
amidst the isolation, stigma, and secrecy spawned by criminalization.
109
Polygamy
per se is not the problem, only bad polygamy.
Still, why would any society make the formal move toward legal recognition of
polyamorous or polygamous unions? One likely justification might arise from
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proposals to recognize as third parents those who donate sperm or eggs for the
conception of a baby, such as the New Zealand Law Commission and Victoria
Law Reform Commission proposed last year. In Canada, judges have already been
asked to recognize three legal parents for children. In one decision involving a
lesbian couple who wanted the biological father recognized as a third parent, the
judge noted that he wanted to grant their petition and was only prevented from
doing so by existing laws.
If and when children are recognized as having three (or
more) legal parents, the argument for recognizing some
form of group marriage will almost certainly go something
like this: Why should children with three parents be
denied the same legal and social protections that children
with only two parents have?
If we get to that place, pity the children. Already we see the
havoc wreaked on childrens lives when two parents break
up and fight over their best interests. Imagine when three or more adults who have
equal claims on a child end their relationship. In the future, how many homes will
we require children to grow up traveling between in order to satisfy the parenting
needs of these many adults? Three? Four? More?
Unless and until same-sex procreation or three-person reproduction becomes a
reality, children will always arise from the union of one man and one woman. All
children have, as the French feminist philosopher Sylviane Agacinski calls it, a
double origin,
110
that of a mother and a father, an origin we cannot deny and that
the children certainly cannot ignore, for they see it every time they look in the mirror.
When we change the mother-father dimension of marriage or the two-person under-
standing of marriage, we also change understandings of parenthood in ways that
will almost certainly dramatically shape the future for children.
Conclusion
A
T THIS MOMENT, with virtually no public discussion, the relationship that is
most core and vital to childrens very survivalthat of parenthoodis being
fundamentally redrawn through new laws, proposals, and practices affecting
marriage, reproduction, and family life, with the state playing an increasingly active
role in defining parenthood for broader categories of children.
Given that in some ways the genie is already out of the bottle, it is not entirely
clear what actions the state and social leaders should take in the near future. For
instance, some nations have moved to ban the practice of anonymous donation of
sperm and eggs. This would seem to be a positive development for childrenafter
Already we see the havoc
wreaked on childrens lives
when two parents
break up and fight over the
childs best interests.
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all, there is a strong argument to be made that children have a right and need to
know their origins. Yet greater acceptance of the idea that donor-conceived children
have a right to know their origins is also leading to the idea that these children
should have the possibility of some kind of relationship with their sperm or egg
donor (and not just a file of information), or even that the donor should have some
kind of legal parental status in the childs life, such as in New Zealand and Australia
where commissions have proposed allowing donors to opt in as childrens third
legal parents.
What might the future hold for children with three or more legal parents? We have
no idea.
Or, in another example, after Britain passed a law banning donor anonymity there
was a purported drastic drop in the number of men willing to donate sperm. The
state health service then began an active campaign to recruit sperm and egg donors,
no longer just allowing the intentional conception of children who will not know or
be raised in relationship with their own biological parents, but very intentionally
promoting it. Meanwhile, couples in that nation who wish to conceive have even
greater incentive to go abroad to nations or regions that have less regulationsuch
as Spain, India, Eastern Europe, or elsewhereto procure sperm or eggs or surro-
gate wombs, making it even less likely that their child will ever be able to trace their
origins or form a relationship with a distant donor abroad.
Again, how will these developments affect children? At the moment we have no real
idea. But we certainly do have serious and immediate cause for concern.
For reasons like these, this report does not conclude with the usual list of specific
policy recommendations. Rather, this report issues a call to fellow citizens in the
United States and Canada and around the world. The call is for all of us to partici-
pate in urgently needed conversation and research about the revolution in parent-
hood and the needs of children.
This much is clear: When society changes marriage it changes parenthood. The
divorce revolution and the rise in single-parent childbearing weakened ties of
fathers to their children and introduced a host of players at times called parents.
The use of assisted reproductive technologies by married heterosexual couples
and later by singles and same-sex couplesraised still more uncertainties about the
meaning of motherhood and fatherhood and exposed children to new losses the
adults never fathomed. The legalization of same-sex marriage, while sometimes seen
as a small change affecting just a few people, raises the startling prospect of funda-
mentally breaking the legal institution of marriage from any ties to biological par-
enthood. Meanwhile, successes in the same-sex marriage debate have encouraged
others who wish fully and completely to break open the two-person understanding
of marriage and parenthood.
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Here is where we are. In law and culture, the two-natural-parent, mother-father
model is falling away, replaced with the idea that children are fine with any one or
more adults being called their parents, so long as the appointed parents are nice
people. This change is happening incrementally, largely led by self-appointed
experts and advocates in a few fields. But it does not have to be this way. Those of
us who are concerned can and should take up and lead a debate about the lives of
children and the future of parenthood.
As we launch this conversation, a guiding principle could
be this: When there is a clash between adult rights and
childrens needs, the interests of the more vulnerable
partyin this case, the childrenshould take prece-
dence.
111
A great deal of evidence supports the idea that
children, on average, do best when raised by their own,
married mother and father, with adoption as an important,
pro-child, admirable alternative. With regard to some newly visible family forms,
such as families headed by gay or lesbian parents or those created using donor
sperm, eggs, or surrogacy, we have more to learn more about the lasting, inner
experience of the children.
To provide time and space for this conversation and for more research, this report
also calls for a moratorium or a time out lasting five years. Until we better under-
stand and prioritize the needs of children, no legislatures, courts, or commissions
should press forward with recommendations or changes that broadly undermine the
normative importance of mothers and fathers in the lives of children, nor should
they support intentionally denying unborn children knowledge of and a relationship
with their own mother and father. Rather, they should concentrate their energies on
rigorous inquiry and active debate about the needs of children and the role of
mothers and fathers in their lives.
The well-being of the worlds children calls us to actnot years from now but right
now. For their sake, for those born and those yet to be born, we must be willing to
launch a sometimes uncomfortable but urgent debate about the well-being of chil-
dren born in an age that is rapidly redefining the meaning of parenthood. Nothing
is inevitable. The time to act is now.
This report issues a call
to fellow citizens in the U.S.
and Canada and
around the world.
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Endnotes
1. Key insights about the fragmentation of parenthood come from Dan Cere, Principal
Investigator, The Future of Family Law: Law and the Marriage Crisis in North America, (New York:
Institute for American Values, 2005), especially the section titled Fragmenting Parenthood.
2. Bill C-38 legalized same-sex marriage nationally in Canada. Same-sex marriage was already
legal in seven Canadian provinces and one territory, including Ontario, British Columbia and Quebec.
3. Reported as Spanish birth certificates to account for gay couples, on the Advocate.com,
March 8, 2006. They cite an article from The Daily Telegraph in London. For further discussion, see
also George Weigel, Europes Two Culture Wars, Commentary, May 2006. Weigel writes, Earlier
this year [in Spain]the Zapatero government, which had already legalized marriage between and
adoption by same-sex partners and sought to restrict religious education in Spanish schools,
announced that the words father and mother would no longer appear on Spanish birth certificates.
Rather, according to the governments official bulletin, the expression father will be replaced by
Progenitor A, and mother will be replaced by Progenitor B. As the chief of the National Civil
Registry explained to the Madrid daily ABC, the change would simply bring Spains birth certificates
into line with Spains legislation on marriage and adoption. More acutely, the Irish commentator David
Quinn saw in the new regulations the withdrawal of the states recognition of the role of mothers
and fathers and the extinction of biology and nature.
4. New Zealand Law Commission, report 88, New Issues in Legal Parenthood, (April 2005,
Wellington, New Zealand).
5. Victorian [Australia] Law Reform Commission, report on assisted reproductive technology,
(April 2005, Melbourne, Australia), Section 2.35. In other words, the planned conception of children
lacking a relationship with their own father or mother serves a social good of reducing the stigma felt
by already-born children who do not live with their own father or own mother.
6. Report of the Commission on Assisted Reproduction (Ireland), April 2005.
7. Christine ORourke, quoted in Reproduction report too radical for legislation in The Sunday
TimesIreland, May 15, 2005, online edition.
8. ICMR guidelines go a long way in curbing exploitation, NewIndPress.Com, June 21, 2005,
emphasis added.
9. Countless articles reported that banning donor anonymity had caused a sudden, drastic drop in
men willing to donate sperm in Britain. But just recently the agency that regulates fertility clinics in
Britainthe Human Fertilisation and Embryology Authorityrefuted that claim, calling it a myth and
saying the problem instead is patchy provision of sperm across the country. See Sperm donor law
not a deterrent, BBC News, June 8, 2006, online edition. Nevertheless, the perception, real or not, is
that it is very difficult to obtain donor sperm in Britain and extremely difficult to obtain donor eggs.
10. See Sperm donor campaign launched, DeHavilland, National News, January 26, 2005; Every
sperm donor recruited costs public 6,250, say critics, News Telegraph, by Charlotte McDonald-
Gibson, July 3, 2005, online edition. In the United States, the California Cryobank has been offering
open identity sperm donation for nearly two decades. Some of the larger sperm banks in the U.S. are
beginning to offer this option. See Sperm donation process moving toward more openness in iden-
tifying fathers, Pittsburgh Post Gazette, by Virginia Linn, August 24, 2005, online edition.
11. There is now pressure on the state to tax this growing business. Taxman has eye on sperm,
The Copenhagen Post, June 3, 2005, article not available online. See also, Danish tax may drain
worlds top sperm bank, China View, May 27, 2005. Coverage of Cryos prompted a spate of stories
about blue-eyed, blonde Viking babies being born around the world.
12. Insemination rights for lesbians, News.com.au via Reuters, June 2, 2006
http://www.news.com.au/story/0,10117,19346798-23109,00.html.
13. Thanh Nien News, Doctors call for community sperm donation in Vietnam, August 15 2005,
reported by Thanh Tung, translated by Minh Phat.
14. Medical professionals used to urge infertility patients (who were almost always heterosexual
married couples) to keep their use of donor sperm a secret, for their sake as well as their childs. Now
the trend is moving toward encouraging parents to be open with their children, but many parents
remain reluctant to do so, especially when there is a (social) father in the family.
15. Pressure on Sperm Donor Laws, The Age, by Carol Nader, June 1, 2005, web edition; Ad
campaign planned for sperm donor kids, Tanya Giles, June 2, 2005, Herald Sun, web edition; see
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also, Revisiting a law that was ahead of its time, The Age, June 6, 2005, editorial, which states that
by 1995, an estimated 10,000 Victorians had been born using donor sperm or eggs and argues that
the rights of children to know their genetic origins outweigh the rights of their parents to keep this
information from them. Further coverage of the planned $100,000 ad campaign is found in Carol
Nader, Bid to ease trauma as donors seek children, The Age, January 27, 2006, online edition.
16. Bob Egelko, State Supreme Court upholds rights, responsibilities of same-sex parents, San
Francisco Chronicle, August 22, 2005, online edition; Adam Liptak, California Ruling Expands Same-
Sex Parental Rights, New York Times, August 23, 2005, online edition; David Kravets, California Court
Protects Kids of Gay Couples, Associated Press, August 23, 2005.
17. As Time magazine noted when the Supreme Court refused to hear a case from Washington
State that granted de facto parental status to a mothers lesbian ex-partner, While we closely monitor
how gay rights are granted and taken away, we pay almost no attention to the fact that stepparents
are in the same legal limbo. Despite being ubiquitous, step-relationships are rarely recognized by the
law. In most states, stepparents are considered legal strangers even if they have cared for and sup-
ported a stepchild for years. They have almost no official responsibility and barely any rights. Rulings
on de facto parenthood are likely to unfold among heterosexuals in unexpected ways. Po Bronson,
Are Stepparents Real Parents?, Time Magazine, May 17, 2006, online edition.
18. A subsequent decision denied the egg donor any relationship to the children. The surrogate
mother was later awarded custody of the triplets; in a recent development a judge ordered that she
must repay the biological father her surrogate fee as well as child support. (The surrogate mother and
her husband already have other children and, while her husband does work, they appear to live on
a limited income.) The surrogate mother took the triplets home against the biological fathers wishes
after, she claims, he and his girlfriend did not name the children or visit them in the hospital for six
days after seeing them when they were born. Surrogate Mom Must Repay Biological Father, AP,
March 16, 2006.
19. A similar case, in which a mother now seeks child support for two-year-old twins fathered
by a known sperm donor, was recently filed in the Chicago area. As in the Pennsylvania case, the
biological mother and father worked out an informal arrangement for use of the sperm. To my knowl-
edge, men who donate their sperm anonymously in clinics have not been held liable for child sup-
port in the United States.
20. Lawrence Kalikow, quoted in PA legislators ponder laws for egg, sperm donors, in
Pittsburgh Tribune-Review, June 5, 2005, online edition.
21. The Ohio legislation is H.B. 102. In New Zealand a New Zealand Herald article, headlined
New hope for childless couples, reports In a significant social shift, embryos left over by couples
who have successfully undergone in vitro fertilization (IVF) will be made available to others trying to
have a child. New Zealand Herald, by Stuart Dye, September 8, 2005, online edition.
22. Gov. Mitt Romney has opposed this idea and instead instructed hospitals in these cases to
cross out the words mother or father and write in the phrase second parent. He added: Look,
each child has a mother and a father. They should have the right to have that mother and father
known to them See Massachusetts debates birth certificates for babies of same-sex couples, Fox
News.com July 27, 2005.
23. In a softer example of this kind of thinking, a city in Australia, using state and federal
funds, distributed a booklet called Were Here to more than 2,000 day care centers which encour-
aged staff to challenge homophobia. Among its recommendations was to use the terms Partner A
and Partner B on forms instead of Mum and Dad. Reported in the Herald Sun, August 5, 2005, by
Susie OBrien.
24. A recent article about the policy was on the front page of the Montreal Gazette, June 1, 2005.
25. Justice Paul Rivard of the Supreme Court of Justice, quoted in Court rules lesbians can be
co-mothers; Ontario given 12 months to change law, by Tracey Tyler, Toronto Star, June 7, 2006. In
Canada, the email newsletter produced by Diane Allen of the Infertility Network (based in Toronto)
is a very helpful source for news items related to infertility, donor conception, adoption and repro-
ductive/genetic technologies in Canada and around the world. See www.infertilitynetwork.org.
26. Note that in the area of adoption the question of revealing the identity of birth mothers is
hotly contested, in part because of fears that loss of anonymity will discourage women from bringing
the child to term.
27. Larry Fisher-Hertz, Ulster gay couple wins legal battle; sons birth certificate is changed,
Poughkeepsie Journal, January 19, 2006. The child was adopted in Virginia.
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28. See Emmett has two mommies: the next gay rights battle heads to court, Portland Mercury
News, April 9, 2006, online edition.
29. The English translation of the report, made available on the French report website, translated
le principe de precaution as a principle of caution, but an ethicist fluent in English and French tells
me that the more accurate translation in English is the commonly used term precautionary principle.
30. French National Assembly, Parliamentary Report on the Family and the Rights of Children,
January 26, 2006.
31. The redefinition of parenthood also appears to be encountering some resistance in Finland.
There, one article reports the nation is in the midst of intense debate about a bill that would impose
regulations on fertility treatments. Leading the assault against the bill were the opposition Christian
Democrats, with the partys chairwoman Paivi Rasanen in the vanguard. Her main argument was that
fatherlessness for a child is worse than childlessness for an adult, and that therefore a childs right to
a father trumps other rights in the matter. From Opinions deeply polarized in parliamentary debate
on fertility treatment bill, Helsingin Sanomat, February 24, 2006, online edition. China also bans the
sale of sperm or eggs and recently warned it will punish those who profit from surrogacy, but of
course there are other significant concerns about Chinas role in regulating reproduction, including
coercive enforcement of the one-child policy.
32. See http://www.unicef.org/crc/. Debates at the time of the ratification make clear that treaty
signatories understood parents to mean a childs own mother and father. The United States has not
signed the convention. For more on the convention, see Don Browning, The United Nations
Convention on the Rights of the Child: Should It Be Ratified and Why? Emory International Law
Review, volume 20, no. 1, Spring 2006.
33. Elizabeth Marquardt, Between Two Worlds: The Inner Lives of Children of Divorce (New York:
Crown Publishers, 2005); Judith Wallerstein, Julia Lewis, and Sandra Blakeslee, The Unexpected Legacy
of Divorce: A 25 Year Landmark Study (New York: Hyperion, 2000).
34. Donor-conceived people say that donor conception is very different from adoption. Adopted
children know that their biological parents, for whatever reason, could not raise them. That knowl-
edge can be painful. At the same time, they also know that the parents who adopted them saved them
from the fate of having no family. By contrast, donor-conceived children know that the parents raising
them are also the ones who, before conception, intentionally planned to deny them a relationship
with (and often knowledge of the identity of) at least one of their biological parents. The pain they
might feel was caused not by a distant, unknown biological parent who gave them up but by the
parent who raised them and cares for them every day. This knowledge brings the loyalty and love
children naturally feel for the parents raising them in direct conflict with the identity quest that most
young people go through. When donor-conceived young people ask, Who am I? Where did I come
from? Why am I here? they can confront a welter of painful uncertainties that our culture hasnt begun
to understand. For example, Joanna Rose, a doctoral student and donor-conceived adult in Australia,
writes: Our kinship was broken as part of a reproductive service to the parents that raised us. Unlike
the child placement principle now in effect in adoption this is not a last resort, nor could severed kin-
ship be said to be in our best interests. See http://familyscholars.org/?p=4488.
35. Tangled Webs is an organization based in Victoria, Australia that is organizing some of these
donor-conceived young adults around the world. Another organization of donor-conceived adults was
recently formed in Japan: Japanese children of anonymous sperm donors seek support, right to truth,
from the Yomiuri Shimbun, reprinted in Fort Wayne News Sentinel, July 5, 2005, online edition.
36. I want to know where I come from, BBC News, April 26, 2005, online edition; Sperm and
the quest for identity, BBC News, June 1, 2005, online edition; Nancy J. White, Are you my father?
Toronto Star, April 16, 2005, online edition; Carol Nader, My dad is my dad, but who gave the
sperm? The Age (Australia), June 3, 2005, online edition; Judith Graham, Sperm donors offspring
reach out into past, Chicago Tribune, June 19, 2005, online edition, and more.
37. In the United States, see www.donorsiblingregistry.com, a website started by a mother orig-
inally to help her donor-conceived son who wished to locate his half-siblings. It has since been fea-
tured on Good Morning America, The Today Show, Oprah, and many other programs. In Britain, see
www.ukdonorlink.org.uk, a pilot voluntary information exchange and contact register funded by the
Department of Health. Its mandate is to encourage more donors, donor-conceived adults and their
genetically related half-siblings to register with them and have the chance to make contact with each
other. See, UK Donor Link Confirms Matches for Half-Siblings, Medical News Today, June 1, 2005,
online edition. Note that it is more than a little ironic that the British Health Service is funding recruitment
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efforts for sperm and egg donors and also funding attempts for donor-conceived adults to make con-
tact with their donors and their half-siblings. The New Zealand government just began a similar donor
registry service in August 2005: The Human Assisted Reproductive Technology (HART) Register will
record all future donations at fertility clinics which result in a birth, and information about earlier
donors and births. It will allow future donors and their offspring to find out about each other, and
will also give people involved in earlier donor treatments the chance to do the same if they all give
consent. http://www.stuff.co.nz/stuff/0,2106,3385637a7144,00.html. New register for donors and
donor offspring launched, August 22, 2005.
38. The obvious absence of the biological father in families headed by single mothers by choice
and lesbian couples appears to have prompted more openness among many of these mothers to
telling their children they were conceived with donor sperm, but studies suggest that the majority of
generally heterosexual, married women do not tell their children they were conceived with a donor
egg. For one analysis, see Nancy Hass, Whose Life Is it Anyway? Elle Magazine, September 2005
issue. Among many astute observations in the piece, Hass notes that becoming pregnant with a donor
egg is yet another way that ageing women can suggest they are still youthful. (Among married, hetero-
sexual men, there are indications that use of donor sperm is declining because of increasingly
effective treatments for male infertility.)
39. These terms were used by donor-conceived teenagers in Amy Harmon, Hello, Im Your
Sister. Our Father is Donor 150, New York Times, November 20, 2005, front page.
40. Joanna Rose, on the Family Scholars Blog.
41. See Abigail Gardner, Families Like Mine: Children of Gay Parents Tell It Like It Is (New York:
Harper Paperbacks, 2005).
42. One of the few studies of their attitudes is a small study by J.E. Scheib, M. Riordan, and S.
Rubin, Adolescents with open-identity sperm donors: reports from 12-17 year olds, Human
Reproduction volume 20 no. 1, (European Society of Human Reproduction and Embryology, 2004),
pp. 239-252. The majority of the teenagers who returned mail-back questionnaires reported that they
would contact the donor because they believed it would help them learn more about themselves.
They are reported to have felt somewhat to very comfortable about their origins. Very few said they
wanted a father/child relationship with the sperm donor and none said they would ask him for
money. (One of the primary concerns of this study was how open-identity sperm donation would
impact the adults as well as the children, and most headlines reporting the study emphasized the
good news for adults, such as this one: Children respect privacy of their sperm donor fathers,
News Telegraph, by Nic Fleming, December 11, 2004, online edition.) While the study findings merit
consideration, a mail-in survey with check-the-box responses is not a particularly strong way to gauge
the inner experience of young people. It is also problematic to survey teenage and younger children
who are still living at home and very much dependent on their parents. In-person, lengthy interviews
with independent young adults who are perhaps more open and reflective about their childhood
experience might yield a different portrait, especially if the anecdotal stories from young adult donor-
conceived people now emerging are any indication.
43. Narelle Grech and Joanna Rose posted their comments on the Family Scholars Blog at
www.familyscholars.org.
44. Quoted in Tom Sylvester, Sperm Bank Baby to Meet Test Tube Dad, National Fatherhood
Initiative, Fatherhood Today, page 4, volume 7, issue 2, Spring 2003. Sources for the article included
Brian Bergstein, Woman to meet her fathera sperm donor, Associated Press, January 30, 2002;
Yomi S. Wronge, P.A. teen to contact dad who was sperm donor, Mercury News, January 20, 2002;
Trisha Carlson, Sperm bank baby to learn donors name, KPIX Channel 5, February 1, 2002; and
Tamar Abrams, Test Tube Dad, viewed on www.parentsplace.com, April 1, 2002.
45. I want to know where I come from, BBC News, April 26, 2005, online edition.
46. Judith Graham, Sperm donors offspring reach out into past, Chicago Tribune, June 19,
2005, online edition.
47. Ibid.
48. Japanese children of anonymous sperm donors seek support, right to truth, from the
Yomiuri Shimbun, reprinted in Fort Wayne News Sentinel, July 5, 2005, online edition. Also in Japan,
a 39 year old donor-conceived woman told a reporter, I feel that I came into this world for the sake
of my mother. After she died, I started wondering if I had a reason to exist anymore. She continued,
I cant overcome the feeling that I wasnt exactly born, but made. (italics in article) See Tomoko
Otake, Lives in limbo, The Japan Times, August 28, 2005, online edition.
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49. Many donor-conceived adults raise the problem of having an unknown number of unknown
half-siblings, both because they want to know about their other blood relations in their quest to
understand who they are, and because they fear unknowingly dating one of them (or their future chil-
dren unknowingly dating offspring of one of their half-siblings). Since many children close in age
could be conceived from the same sperm donor and live in relative proximity to the sperm bank, and
since sharing half your genetic make-up with someone might make them seem especially familiar
and attractive (especially if you did not know they were your blood relation) the fear of unknowingly
dating a half-sibling is not unfounded. At the Family Scholars Blog, Narelle Grech, a donor-conceived
adult, asks, In the future, will we all have to have a DNA test when we start dating someone, just
in case? In a news article, one mother who used donor insemination says optimistically that her son
will simply need to get DNA tests of partners once he starts dating seriously. See Kay Miller, The
legacy of donor 1047, Minneapolis Star Tribune, August 21, 2005, online edition.
50. Dear Abby, San Jose Mercury News, January 2, 2005, web edition. In a terse, two sentence
reply, Abby told the girl that the sperm donor was doing a noble deed and there is no way to trace
his identity.
51. The response is akin to those who suggest to children of divorce that they should be grateful
for their parents divorce because without it they would not have the new half-brother or half-sister
who was born in a subsequent marriage. There is no rational or compassionate basis for suggesting to
someone who is struggling to tell their own story that to do so is to wish away the existence of a
human life, their own or someone elses.
52. Blaine Hardin, 2-Parent Families Rise After Change in Welfare Laws, New York Times, August
12, 2001.
53. For full citations, see Why Marriage Matters: 26 Conclusions from the Social Sciences, 2nd edi-
tion (New York: Institute for American Values, 2005). See also Robin Fretwell Wilson, Evaluating
Marriage: Does Marriage Matter to the Nurturing of Children (San Diego Law Review, volume 42: 847-
881, 2005).
54. Girls in stepfamilies are slightly more likely to have a teenage pregnancy compared to girls in
single-parent families, and much more likely to have a teenage pregnancy than girls in intact, married
families. Children who grow up in stepfamilies are also more likely to marry as teenagers, compared
to children who grow up in single-parent or intact, married families. (See Why Marriage Matters, foot-
notes 36 and 37.) In regard to educational achievement, children whose parents remarry do not fare
better, on average, than do children who live with single mothers. (See Why Marriage Matters, foot-
note 84.) One recent study finds that boys in raised in single-parent homes are about twice as likely,
and boys raised in stepfamilies are more than two and a half times as likely, to have committed a crime
that leads to incarceration by the time they reach their early thirties. (See Why Marriage Matters, foot-
note 130.) Teens in both one-parent and remarried homes display more deviant behavior and commit
more delinquent acts than do teens whose parents have stayed married. (See Why Marriage Matters,
footnote 131.) Children living with single mothers, mothers boyfriends, or stepfathers are more likely
to become victims of child abuse. (See Why Marriage Matters, footnotes 153-155.)
55. Some same-sex marriages will involve children from previous unions and in that sense will be
very much like stepfamilies. Other same-sex marriages that form before children are born or adopted
might in some ways parallel an intact, heterosexual marriage, but even in these unions at least one
parent will not be a biological parent to the child, much like stepfamilies (or heterosexual adoptive
families).
56. Robin Fretwell Wilson writes, These studies of fractured families differ in their estimates of the
percentage of girls molested during childhood. However, regardless of whether the precise number is
50% or even half that, the rate is staggering and suggests that girls are at much greater risk after
divorce than we might have imagined. She continues, Despite these studies, the idea that so many
girls in fractured families report childhood sexual abuse strains credulity. Nevertheless, with more
than seventy social science studies confirming the link between divorce and molestation, there is little
doubt that the risk is indeed real. As difficult as it is to accept, a girls sexual vulnerability skyrockets
after divorce, with no indication that this risk will subside. In Children at Risk: The Sexual
Exploitation of Female Children after Divorce, 86 Cornell Law Review 251: January 2001, p. 256.
57. Joseph H. Beitchman, et al, A Review of the Short-Term Effects of Child Sexual Abuse, 15
Child Abuse and Neglect 537, 550 (1991), cited in Robin Fretwell Wilson, footnote 9.
58. Martin Daly and Margot Wilson, 1996. Evolutionary Psychology and Marital Conflict: The
Relevance of Stepchildren, in Sex, Power, Conflict: Evolutionary and Feminist Perspectives, eds. David
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M. Buss and Neil M. Malamuth (Oxford: Oxford University Press): 9-28, cited in Why Marriage
Matters: Twenty-One Conclusions from the Social Sciences, published by the Center of the American
Experiment, the Coalition for Marriage, Family and Couples Education, and the Institute for American
Values (2002).
59. Cites W.D. Hamilton, Significance of paternal investment by primates to the evolution of
adult male-female associations, in D.M. Taub, ed., Primate Paternalism (New York: Van Nostrand,
1964), pp. 309-335.
60. Cites M.S. Smith, Research in developmental sociobiology: Parenting and family behavior,
in K.B. MacDonald, ed., Sociobiological Perspectives on Human Development (New York: Springer-
Verlag, 1988), pp. 271-292.
61. David Popenoe, The Evolution of Marriage and the Problem of Stepfamilies: A Biosocial
Perspective, in Alan Booth and Judy Dunn, eds., Stepfamilies: Who Benefits? Who Does Not? (Hilldale,
New Jersey: Lawrence Erlbaum Associates, 1994), pp. 3-27.
62. See Do Mothers and Fathers Matter? The Social Science Evidence on Marriage and Child Well-
Being, iMapp Policy Brief, February 27, 2004 (Washington, D.C.: Institute for Marriage and Public
Policy), which includes full citations.
63. Affidavit of Stephen Lowell Nock, Halpern v. Attorney General of. Canada, No. 684/00 (Ont.
Sup. Ct. of Justice).
64. See Do Mothers and Fathers Matter? The Social Science Evidence on Marriage and Child Well-
Being, iMapp Policy Brief, February 27, 2004 (Washington, D.C.: Institute for Marriage and Public
Policy).
65. Approximately two-thirds of divorces end low-conflict marriages; about one-third of divorces
end high-conflict marriages. See Paul R. Amato and Alan Booth, A Generation at Risk: Growing Up in
an Era of Family Upheaval (Cambridge: Harvard University Press, 1997), p. 220.
66. Family Vacation, by Michael Leahy, Washington Post Magazine, June 19, 2005, online edi-
tion. Examples of other media coverage of the same story includes, Anonymous Sperm Donor Meets
Kids, CBS News, New York, August 23, 2005, online at www.cbsnews.com.
67. See www.parentsincluded.com.
68. Http://groups.yahoo.com/group/to-parent/. Note that the term co-parent evolved amid the
divorce revolution as mothers and fathers were urged to be effective co-parents in the wake of their
split. The term is now also commonly used to describe situations in which two or more men and
women (who may be gay or straight)long before the birth of a childplan to conceive and raise
a child together without being in a romantic relationship with one another and usually without living
together.
69. The ad listed a PO Box and advised, Must be white, in good health, no family history of
ADD or ADHD please. Website viewed July 12, 2005.
70. Baby Mamas, by Rodney Thrash, St. Petersburg Times, May 6, 2005 online edition.
71. All About Eves, by Anne A. Jambora, Philippine Daily Inquirer, May 8, 2005, online edition.
72. See Sara Butler Nardo, De Facto Parenthood: The reformers latest unwholesome innovation
in family law, The Weekly Standard, March 6, 2006. She argues the courts are operating on a circular
definition in which a parent is a person who performs the function of a parent. In November
2005, Washington State was the most recent to award psychological parent status to a parents ex-
partner (in this case, a mothers ex-girlfriend); the opinion is available here
http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=756261MAJb. For a rebuttal to the
Nardo article, see Dahlia Lithwick, Why courts are adopting gay parenting, Washington Post opinion
piece, March 12, 2006, B02.
73. See Po Bronson, Are Stepparents Real Parents?, Time Magazine, May 17, 2006, online edi-
tion, for an examination of the Washington State de facto parent case and its implications for the
approximately one-third of Americans who live in stepfamilies.
74. Frances Gibb, Mother loses her children to former lesbian partner, The Times Online, April
7, 2006.
75. Of course it is heartbreaking to see a parent alienate a child from someone to whom the child
is close. Unfortunately, it can happen in all kinds of situations, for instance, when mothers alienate
their children from their ex-husbands parents; parents alienate their children from loving aunts or
uncles; parents abruptly dismiss nannies who the children have come to love, and so on. The law is
largely unable to heal these disappointments, and the attempt to do sowith the state intervening
further in private decisions made by mothers and fathers that are not resulting in abuse or neglect of
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childrenis likely to do children overall more harm than good. Further, if same-sex couples in some
states are encountering discrimination in accessing second-parent adoption (that is, if they are finding
the process more onerous than heterosexual couples pursuing the same status), or if the option is not
available in some states, then the appropriate response is to fix the problems in second-parent adop-
tion and not to resort broadly to an entirely different, after-the-fact category called psychological
parent.
76. A company called Family Evolutions in New Jersey, owned by a lesbian couple with chil-
dren, has created a t-shirt and bib for children which reads, My Daddys Name is Donor. (Their
young son is pictured in the t-shirt on their website.) See Elizabeth Marquardt, Kids need a real past:
Children with donor parents suffer when those raising them downplay their origins, op-ed in
Chicago Tribune, May 15, 2005. Available at http://www.americanvalues.org/html/donor.html.
77. Egg donor has parental rights, courts say, AP article in Pittsburgh Post-Gazette, September
10, 2005, online edition.
78. In the United States, Harvard University recently announced plans to begin privately funded
stem cell research, joining the University of California at San Francisco and a few private companies.
These teams are working to clone human embryos that are genetically matched to patients.
79. Increasingly the distinction between therapeutic and reproductive cloning appears to be
dropped in the mediaand, to hear some tell it, only extreme conservatives oppose cloning. For
instance, on NPR the scholar Alan Wolfe said that Pope Benedict is on the far right because he
opposes, among other things, cloning. Similarly, in a column Maureen Dowd said that one of the
many serious concerns about the new Pope is that he once called cloning more dangerous than
weapons of mass destruction.
80. Alok Jha, Process holds out hope for childless couples, Guardian, May 20, 2005, online
edition.
81. Ibid.
82. A young woman in Britain recently died from ovarian hyperstimulation syndrome (OHSS),
the most common high-risk side effect of egg donation. Another young woman who developed OHSS
and suffered a stroke and brain damage just won a large lawsuit in Britain.
83. Mark Henderson, Cloning team calls for IVF egg donations, Times Online, May 31, 2005;
Cloning research egg donor plan: women could be allowed to donate their eggs for therapeutic
cloning research under new rules to be considered by fertility watchdog, BBC News Online,
February 14, 2006. In July of 2006 the fertility regulatory authority granted a team of scientists from
Newcastle and Durham Universities permission to contribute to the costs of a patients IVF treatment
in return for receiving some of her eggs for use in therapeutic cloning research. See Andrew
Douglas, Human egg donor boost for stem cell research, The Northern Echo, July 27, 2006, online
edition.
84. In Japan in 2004, scientists created a mouse from the genetic material of two femalesin
other words, a mouse with two genetic mothers and no genetic father. To do so, they created over
450 embryos of which 370 were implanted and ten were born alive. Only one survived to adulthood.
The others died of a range of birth defects. See Bijal P. Trivedi ,The End of Males? Mouse Made to
Reproduce Without Sperm National Geographic News, April 21, 2004, online edition. How can any-
one even consider experimenting with human embryos and children in this way?
85. James Meikle, Sperm and eggs could be created from stem cells, says new study, Guardian,
June 2, 2005, online edition.
86. Maxine Firth, Stem cell babies could have single parent, New Zealand Herald, June 21, 2005,
online edition.
87. Milanda Rout, Doing away with donors, Herald Sun (Australia), June 21, 2005, online
edition.
88. Stem cell research may provide hope to gay couples, at www.proudparenting.com, June
30, 2005. An example of news coverage later in the year included Hannah Seligson, Sciences hope
of two genetic dads; stem cell research could soon enable both partners in gay, lesbian couples to
pitch in, at Gay City News, September 8-14, 2005 issue, online edition. The article quotes a physician
(not involved with the research) saying that gay and lesbian couples often have to deal with the
issue of not being a genetic parent and that can be tough for that parent. The reporter writes, The
hope is that this new discovery could alleviate that component of stress for gay and lesbian couples
starting families. The article does not address the possibility of serious health (or other) risks for these
embryos or children.
SER 221
Page 41
89. Roger Highfiel and Nic Fleming, Scientists create human embryo without a father; source of
stem cells: virgin territory for British researchers, The Daily Telegraph, September 10, 2005, online
edition.
90. Mark Henderson, Scientists win right to create human embryo with three genetic parents,
Times Online, September 9, 2005.
91. In her article, Where Babies Come From: Supply and Demand in an Infant Marketplace,
Harvard Business Review, February 2006, pp. 133-142, author Debora L. Spar suggests that market
regulation of the fertility industry in the U.S. could, among other things, assure equity (for adults).
She writes, Legislatorscould decide that having children is a basic right and that society therefore
needs to find some way to provide at least one child to everyone who wants to be a parent. (p.
140) Spar does not claim necessarily to support this idea but neither does she oppose it. This sugges-
tion is the clearest articulation yet of the adult right to a child, taken to its most logicaland chilling
conclusion.
92. When confronted by the specter of group marriage; increasing use of donor sperm and eggs
or surrogacy; new advances in reproductive technology, and the like, some who support same-sex
marriage argue that heterosexuals are almost wholly responsible for this revolution in marriage and
parenthood given their rampant divorce, unwed childbearing, and initial use of sperm and egg donors
and surrogates in reproduction. As Stephanie Coontz wrote in a New York Times op-ed (The
Heterosexual Revolution, July 5, 2005), Gays and lesbians simply looked at the revolution hetero-
sexuals had wrought and noticed that with its new norms, marriage could work for them, too. These
critics are partly right. Heterosexuals have certainly done a fine job of messing with marriage and par-
enthood. (Most of my time is spent researching the impact of divorce on children.) But here is where
the critics are wrong: None of the other legal and social changes so far have required a legal redefi-
nition of marriage. Same-sex marriage requires legally redefining the institution with gender neutral
terms that make law and culture unable to affirm childrens real needs for their mother and their father
(instead law and culture can only affirm that children need two parents). Because the vast majority
of children in the population are born to heterosexuals, not homosexuals, silencing the dialogue
about the importance of mothers and fathers will negatively affect mainly and overwhelmingly that
far larger group of children. To raise the troubling and perhaps even unintended consequences of
legalizing same-sex marriage is not meant to stigmatize same-sex couples raising children. These couples
are and will continue to raise children. I do believe they need social and legal protections for them-
selves and their children and they should certainly not be denied the children born to them. But there
could be significant unintended consequences for the vast majority of children born to heterosexuals
when we edit mothers and fathers out of marriage and family law.
93. Much of this section was published in Elizabeth Marquardt, The Future of Polygamy: Two
Mommies and a Daddy, Christian Century, July 25, 2006.
94. Reid J. Epstein, Whole lotta love; Polyamorists go beyond monogamy, Milwaukee Journal-
Sentinel, September 12, 2004, online edition.
95. Trevor Stokes, Columbia News Service, A poly life: monogamy with more partners, Chicago
Tribune, viewed February 24, 2006, online edition.
96. See Dan Cere, The Future of Family Law.
97. In a bid for greater public attention for their argument that marriage rights should be extended
not just to same-sex couples but to any group of caring adults (who might or might not be in a
conjugal relationship), 250 U.S. academic and social leaders (including many notables) released a
statement at the end of July of 2006 titled Beyond Same-Sex Marriage: A New Strategic Vision For All
Our Families and Relationships. For the executive summary, full statement, and list of signatories, see
www.beyondmarriage.org.
98. See their website at http://www.unmarried.org/. Hot topics are listed at left.
99. See www.uupa.org.
100. Http://www.livejournal.com/community/polyamory/890327.html. For me, one of the most
disturbing ideas in all this is the all-too-common assumption that when adults begin a sexual and/or
live-in relationship they become parents to each others already-born children. Children with single
or divorced heterosexual parents will tell you that their parent having sex with someone does not
make the child automatically see that person as a parent. Even marriage (as in stepfamilies) does not
automatically create (legally or psychologically) a parent-child relationship. Trusting, parent-like
bonds between stepparent and stepchild typically take time to form, if they form at all. Moreover, a
stepparent must formally adopt a child in order to become a legal parent to that child (and before
SER 222
the adoption can proceed the parental rights of the childs other parent must be revoked, a grueling
process when undertaken by the courts).
101. Http://www.livejournal.com/community/polyamory/890327.html.
102. Http://www.livejournal.com/community/polyamory/890327.html. At the same site another
mother writes that she has a simple rule for her 12 year old when he visits: What happens at
Mommys house stays at Mommys house if you want to keep visiting Mommy.
103. Http://www.polychromatic.com/kids.html.
104. Http://www.polyamorysociety.org/children.html.
105. Elise Soukup, Polygamists, Unite! They used to live quietly, but now theyre making noise,
Newsweek, March 15, 2006, online edition.
106. Felicia R. Lee, Real Polygamists Look at HBO Polygamists; In Utah, Hollywood Seems
Oversexed, New York Times, March 28, 2006, Arts Section, online edition.
107. Robert H. Frank, Polygamy and the Marriage Market: Who Would Have the Upper Hand?,
New York Times, March 16, 2006, Business Section, online edition.
108. John Tierney, Whos Afraid of Polygamy? New York Times, March 11, 2006.
109. Stanley Kurtz, Polygamy versus democracy; you cant have both, The Weekly Standard,
06/05/2006, Volume 011, Issue 36, online edition. Stanley Kurtzs columns at National Review Online
have documented many events and emerging arguments relating to polyamory and polygamy. See for
example his column, Big Love, from the Set: Im taking the people behind the new series at their
word, March 13, 2006 at National Review Online.
110. See Sylviane Agacinski, Parity of the Sexes, translated by Lisa Walsh, (New York: Columbia
University Press, 2001), especially the chapter titled, The Double Origin, pp. 99-110.
111. For a fuller discussion of this principle and the problems surrounding the redefinition of
parenthood that accompanies the deinstitutionalization of marriage, see David Blankenhorn, The
Future of Marriage (New York: Encounter Books, November 2006), especially the chapter titled
Goods in Conflict.
Page 42
SER 223
SER 224
The Institute for American Values is a nonpartisan organization dedicated to strengthening families
and civil society in the U.S. and the world. The Institute brings together approximately 100 leading
scholarsfrom across the human sciences and across the political spectrumfor interdisciplinary
deliberation, collaborative research, and joint public statements on the challenges facing families
and civil society. In all of its work, the Institute seeks to bring fresh analyses and new research to
the attention of policy makers in government, opinion makers in the media, and decision makers
in the private sector.
Institute for American Values 1841 Broadway, Suite 211 New York, NY 10023 United States
Tel: (212) 246-3942 Fax: (212) 541-6665 info@americanvalues.org www.americanvalues.org
The Institute for Marriage and Public Policy is a nonprofit, nonpartisan organization dedicated to
high quality research and public education on ways that law and public policy can strengthen
marriage as a social institution. Working with top scholars, public officials, and community leaders,
iMAPP brings the latest research to bear on important policy questions, seeking to promote
thoughtful, informed discussion of marriage and family policy at all levels of American government,
academia, and civil society.
Institute for Marriage and Public Policy P.O. Box 1231 Manassas, VA 20108 United States
Tel: (202) 216-9430 info@imapp.org www.imapp.org
About the Institute for the Study of Marriage, Law and Culture
The Institute for the Study of Marriage, Law and Culture is a nonpartisan, nonprofit Canadian
association for research and study of current trends and developments in marriage and family. The
Institute draws together scholars from different disciplines and seeks to stimulate ongoing research
by providing a forum for innovative and informed dialogue for scholars, policy makers and the
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Institute for the Study of Marriage, Law and Culture 3484 Peel Street Montreal, Quebec H3A
1W8 Canada Tel: (514) 862-4105 Fax: (514) 398-2546 inquiries@marriageinstitute.ca
www.marriageinstitute.ca
About the Institute of Marriage and Family Canada
The Institute of Marriage and Family Canada (IMFC) is a non-profit, non-partisan initiative that
conducts, compiles and presents the latest and most accurate research to ensure that marriage and
family-friendly policy are foremost in the minds of Canadas decision makers.
Institute of Marriage and Family Canada 130 Albert St. Suite 2001 Ottawa, Ontario K1P 5G4
Canada Tel: (613) 565-3832 or Toll Free 1-866-373-IMFC Fax: (613) 565-3803
info@imfcanada.org www.imfcanada.org
SER 225

appellate CM/ECF system on January 21, 2014. I certify that all participants in the
case are registered CM/ECF users and that service will be accomplished by the
appellate CM/ECF system.

s/ Monte N. Stewart
Case No. 12-17668


v.
and


DEFENDANT-APPELLEES
VOLUME 2 OF 5

Monte N. Stewart
Boise, ID 83713
Tel: (208) 345-3333

VOLUME 1 OF 5

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America (2005)
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Dkt. No.
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Farrow eds., 2004)
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73 479
eds., 2006)
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trans., 1985)
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Systems 1-3 (1988)
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Dkt. No.
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41, 168-70 (2002)
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139-63 (1996)
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292 (1998)
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(2002)
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Dkt. No.
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25 (2010)
95-1 717
95-1 739

A Global Look at Todays New Intentional Families
Elizabeth Marquardt, Principal Investigator
Released by the Commission on Parenthoods Future Institute for American Values
SER 226
A B O UT TH E C O MMI S S I O N O N PA R E NTH O O D S F UTU R E
The Commission on Parenthoods Future is an independent, nonpartisan
group of scholars and leaders who have come together to investigate the
status of parenthood as a legal, ethical, social, and scientic category in
contemporary societies and to make recommendations for the future.
Commission members convene scholarly conferences; produce books, re-
ports, and public statements; write for popular and scholarly publications;
and engage in public speaking. Its members include the following:
Daniel Cere, McGill University (Canada)
Karen Clark, FamilyScholars.org
Kathleen Kovner Kline, University of Colorado School of Medicine
Suzy Yehl Marta, Rainbows Inc.
Elizabeth Marquardt, Institute for American Values
David Popenoe, Rutgers University (Emeritus)
Stephen G. Post, Center for Medical Humanities, Compassionate
Care, and Bioethics at Stony Brook University
David Quinn, Iona Institute (Ireland)
John Witte, Jr., Emory University
Peter Wood, National Association of Scholars
SER 227
A Global Look at Todays
New Intentional Families
ONE PARENT
OR FIVE
SER 228
Design by Alma Phipps & Associates. 2011 Institute for American Values. No
reproduction of the materials contained
herein is permitted without written permis-
sion of the Institute for American Values.
ISBN# 978-1-931764-26-1
New York New York 10023
Tel: 212.246.3942
Fax: 212.541.6665
Website: www.americanvalues.org
E-mail: info@americanvalues.org
A L S O R E L E A S E D BY TH E C O MMI S S I O N O N PA R E NTH O O D S F UTU R E
Elizabeth Marquardt, The Revolution in Parenthood: The Emerging Global
Clash between Adult Rights and Childrens Needs (2006)
Elizabeth Marquardt, Norval D. Glenn, and Karen Clark, My Daddys Name
Is Donor: A New Study of Young Adults Conceived through Sperm Donation
(2010)
Linda McClain and Daniel Cere, co-editors, What Is Parenthood? (An inter-
disciplinary scholarly volume debating a family diversity or an integrated
point of view, with editors and authors contributing chapters from each
viewpoint, forthcoming.)
SER 229
TABLE OF CONTENTS
EXECUTIVE SUMMARY 6
1. WH AT I S I NTE NTI O NA L PA R E NTH O O D? 7

2. ME E T TO D AY S I NTE NTI O NA L F A MI L I E S
One-Parent Families
Single Mother by Choice 10
Single Father by Choice 15
Posthumous Conception 18
Cloning? 21
Two-Parent Families
Married Mother and Father 23
Same-Sex Marriage and Parenting 24
Co-Parenting Pre-Conception Arrangements 33
Same-Sex Procreation? 36
Tree-Parent Families 36
Polyamory 38
Polygamy 41
Three-Person Reproduction 44
Four- and Five-Parent Families
Conceiving Children with Four or Five Legal,
Social, Biological, and/or Gestational Parents 47
Co-Parenting Bothies 48
3. TH E WA NTE D C H I L D 54
ENDNOTES 59
SER 230
6
What do children need? Do mothers and fathers matter? Is intending to have
a child a key factor in child well-being, or do other factors, such as the family
structure in which a child is raised, matter as well?
In todays debates about the family a new term is often heard: intentional par-
enthood. The term, which appears to have originated in the 1990s to resolve
disputed surrogacy or lesbian parenting family law cases, has been embraced
broadly within family law and by family diversity leaders around the world.
Intentional parenthood, its advocates say, is good for children. Intention makes
a wanted child. Anyone can be an intentional parentstraight, gay, married,
partnered, or single.
This report takes the reader on a global tour of todays new intentional fami-
lies, introducing one-, two-, three-, four-, and ve-parent families. The report
reveals what we do and do not know, from a social scientic point of view,
about child well-being in these family structures. Some of these family forms
are too new, too rare, or until recently too secret to have been studied closely.
Others, such as the married mother-father family, are forms about which we
now know a great deal. At the same time, intriguing new research on the
practice of intentionally conceiving childrenthrough anonymous sperm dona-
tionwho will not know or be known by their biological fathers, suggests that
intention alone hardly guarantees that children will do well.
What do family forms that even before conception intentionally deny children
a relationship with their biological father or mother have in common? What
forms do these families take? How do young people deliberately denied a bio-
logical parent feel about what happened to them? This report presents what we
believe to be the rst systematic critique of the concept of intentional parent-
hood and offers a surprising and at times disturbing portrayal of practices now
being followed around the world.
EXECUTIVE SUMMARY
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7
Where did the idea of intentional parenthood originate? While the concept
shares intellectual parallels with the idea of planned parenthood and a centu-
ry-long discourse about legal access to contraception and, more recently, abor-
tion, the specic language of intentional parenthood appears to have originated
as a legal concept in the United States in the 1990s, as judges sought to grapple
with murky surrogacy cases. Diane Ehrensaft, a developmental and clinical
psychologist in Berkeley, California, and author of Mommies, Daddies, Donors,
and Surrogates: Answering Tough Questions and Building Strong Families,
1
re-
fers to the 1997 case of Luanne and John Buzzanca. The Buzzancas conceived
a child using donor sperm, donor egg, and a surrogate, and then split up be-
fore the baby was born. The legal case pitted them against each other as well
as against the surrogate mother, who sought to keep the child.
Ehrensaft writes that ultimately, The court decision was made on the basis that
these two people [Luanne and John Buzzanca] were the ones who intended to
have this child together.
2
It was this tumultuous legal case, she continues,
that helped point us all toward a key concept in family building using re-
productive technologythe intent to parent. If we want to know who a child
belongs to, ask who made plans to have the child.
3
In the years following, this
concept was used in lesbian parenting disputes that came before the courts.
These were cases in which a non-biological mother gure sought rights to a
child whom she and her ex-partner had conceived together using donor sperm,
or in which a biological mother sought to deny custody or visitation rights to
her former partner.
4

In an oft-cited article published by the Hastings Law Journal in 2002, City Uni-
versity of New York School of Law professor John F. Storrow sought to under-
line how intentional parenthood should be used as a guiding framework even
for those who do not have access to marriage. He took on recently enacted
and proposed statutory provisions that clearly dene intentional parenthood
1. WHAT IS INTENTIONAL
PARENTHOOD
SER 232
8
but reserve the status to married couples alone.
5
Drawing upon the emerg-
ing doctrine of functional parenthood (which denes parenthood around who
actually cares for the child), Storrow sought to illumine recent theories about
intentional parenthood, arguing that planning and preparing for the birth of a
childnot marriageare the essential criteria in determining who isand is
notan intentional parent.
6
Other legal scholars then employed the concept of intentional parenthood
beyond disputed surrogacy or lesbian parenting cases. For example, Univer-
sity of Florida law professor Nancy Dowd has argued that fatherhood should
be legally dened around intentional, ongoing caretaking rather than around
genes, marriage and money.
7
The idea of intentional parenthood has leapt from the legal lexicon to the
broader academic and cultural vocabulary, becoming largely synonymous with
the already popular idea of families of choicethat is, family dened not
necessarily by marriage or blood or adoption, but by choices freely made by
autonomous beings. British philosophy professor Susanne Gibson describes
single mothers by choice as those who practiceintentional single parent-
hood.
8
In a particularly free-oating denition, Kathleen M. Galvin, professor
of communications at Northwestern University, denes intentional families as
families formed without biological and legal ties, [which] are maintained by
members self-denition. These ctive or self-ascribed kin become family of
choice, performing family functions for one another.
9
More recently, intentional parenthood has been elevated as a good by fam-
ily diversity leaders who have long fought to make their case for the equal
value of all family structures, despite the reality of messy divorces, stressed-out
remarriages, and unplanned births to struggling single moms. Drawing upon
longstanding ideas about the value of planned pregnancy embedded in public
discussion on contraceptive and abortion rights, family diversity advocates now
discover among lesbians and gays using articial reproductive technologies a
realm of peace and order, intention and planningwhere no child can fall into
that dreaded category of personhood: the accident.
Ellen C. Perrin, professor of pediatrics at Tufts School of Medicine and lead
author of the American Academy of Pediatrics 2002 report on same-sex parent-
ing, observed that for same-sex couples it typically takes a lot more planning
and thought to become parents. She added, If anything there is a very high
SER 233
9
level of commitment to parenting among [them].
10
After the June 2010 release
of a widely-publicized study purporting to show that children of lesbian moth-
ers actually do better than children of heterosexuals,
11
a number of observers
repeated the oft-stated claim of lesbian and gay leaders: None of our children
are accidents. One reporter wrote, There are obviously no gay accidents.
12

Another quoted a source as saying, Lesbian and gay parents have to choose to
have a family. There are no accidental children.
13
Following the January 2011
decision by the U.S. State Department to extend benets to partners of gay and
lesbian employees, another observer commented on an article on the Washing-
ton Post website: when children come along for gay couples, its because we
really want to have them. They are not accidents or treated as such.
14
A social
work textbook concurs: What stands outis that parenting is a choice for gays
and lesbians.Pregnancy and parenting is not an accident as it might be in
heterosexual relationships (emphasis in original).
15
Rather, the decision is well
thought out, and probably even extremely expensive.
16
Sex columnist Dan
Savage agrees. Since gay men and lesbians dont have children by accident,
all our kids, he writes, are wanted kids, planned for and anticipated.
17
The
implication is that intentionwhat the adults meant to do before they started
the familyis a key ingredient for child well-being.
So, who are todays intentional families? What do they look like? What forms
do they take?
In this report you will meet todays new intentional one-, two-, three-, and
four-plus- parent families from around the world. These are the variety of fami-
lies that adults set out to form before a child is conceived. Intentional families
do not include those who are divorced, remarried, a single mother by accident,
widowed, or adoptive. They do not include the grandmother raising her grand-
children or the married couple who take in their niece or nephew. In none of
these cases do the adults actively decide: Id like to make a divorced family
or Id like to get married and then have my spouse die or Id like my daugh-
ter to get hooked on drugs and then get pregnant so I can raise my grandchil-
dren or Id like to get pregnant by accident.
18
The intentional families around the world featured in this report include those
todays would-be parents think about in advance, then decide with pride and
say, yes, I want to do this. This is my choice.
Lets get started.
SER 234
10
ONE-PARE NT FAMI LI E S
Single Mother by Choice
The single mother by choice has her own acronym: the SMBC. Since 1981, an
organization in her honor has been hosting meetings where SMBCs can gather,
trade diaper talk, commiserate about lousy family leave policies, and provide
tips to curious would-be SMBCs looking for advice. Their ranks include wom-
en who became unexpectedly pregnant and, deciding against adoption, abor-
tion, or marriage, choose to raise the baby alone; women who adopt; women
who intentionally stop using birth control in order to become accidentally
pregnant in a casual relationship; but mostly (and getting the most headlines)
women who choose their babys absent father from a sperm bank. Nationwide
chapters of SMBC have grown from twelve to twenty-four in just the last three
years.
19
Since most people soon get fed up being known by a cumbersome set
of letters, the SMBC movement has lately adopted a new, edgier, and decidedly
American moniker: the choice mom. America loves motherhood and freedom
of choice, and its clear the American media loves a good story about choice
moms.
Open the New York Times. The October 13, 2005, headline Women Opt for
Sperm Banks and Autonomy tops one of many stories across the country
revealing how women today can browse online catalogs and shop for a sperm
donor in the same way they might choose a sectional sofa or a new car. The
article states that about three-quarters of the 4,000 SMBC members used sperm
donors to get pregnant, and quotes one Long Island choice mom as saying,
Youre paying for it, so you kind of want the best of the best. The reporter
notes that this mom saw her ability to select a 6-foot-2 blond, blue-eyed,
genetic-disease-free donor as some consolation for not getting to fall in love
with someone who would most likely have been more awed.
20
Or ip to the
Times magazines January 29, 2009, installment and read 2 Kids + 0 Husbands
2. MEET TODAYS NEW
INTENTIONAL FAMILIES
SER 235
11
= Family. Until recently (Nadya Suleman, otherwise known as Octomom,
excepted), most choice moms chose to have only one child. Now, according to
the article, they are increasingly choosing to have two: instead of giving their
children a father, they give them a sibling.
21
Open the Chicago Tribune to this bold heading: Women in Their 30s and 40s
Choose Not to Wait for a Spouse. Amid the breathless declarations that single
women are helping redene the typical American family, single mothers are
integrating into the mainstream and getting attention in the media, and the
stereotypes of the 1950shave long vanished from many American house-
holds, we do nd some hard reality in one choice moms story.
22
Ten years
ago, pushing forty, she moved to a new state, bought a house, and began
decorating a nursery. She got involved with a man, they were not using birth
control, and she reports that his attitude about a pregnancy was, If it hap-
pens, it just happens. She became pregnant and soon after that was no longer
involved with the father. Of her now nine-year-old daughter, this choice mom
reports, She does cry sometimes about not having her dad around, but we talk
about it.I do feel guilt sometimes, but we try not to let it overwhelm us.
23

Yet rather than dwell on the inconvenient fact that this child, like so many,
mourns the loss of her father, the story swings back to breezy portraits of
single moms toting their tots on campus, managing their managerial posts with
aplomb, and relying on their own mothers, nannies, and au pairs to provide all
the care that they as working single parents cannot.
Or open the September 2005 Atlantic, in which writer and choice mom Lori
Gottlieb, midway through her rst pregnancy, details the giddy excitement of
expecting a baby without having a man in the way. Like many choice moms
interviewed in the media, Gottlieb conrms that single women often turn to
donor sperm not because their clock is ticking and no man is available, but
because none of the men available are good enough for them: Many, includ-
ing me, have turned down engagement rings from eligible bachelors even as
our biological alarm bells started sounding. As a friend put it, were paradoxi-
cally desperate but picky.
24
While browsing online donor catalogs (Did I
want an M.B.A. or a Ph.D.? A lacrosse player or a violinist?) Gottlieb gushes
in words seemingly designed to offend the male half of the human species
that it felt liberating to have the pick of the genetic crop.
25
She echoes the
common secret pleasure of todays choice mom: by bypassing the uncontrol-
lable world of romance, I was able to choose a man to father my child who
SER 236
12
might be completely out of my league in the real world.
26
After she becomes
pregnant, Gottlieb notes that Ive gotten a surprising amount of male atten-
tion lately, not due to some bizarre pregnant-lady fetish, but because the
men Im dating realize that I already have everything else I want, so now
Im in this purely for a chance at love.
27
Expecting her child in a couple of
months, Gottlieb closes her piece with a sigh: in a very modern sense my life
these days feels incredibly romantic.
28
I read Gottliebs piece that autumn while knee-deep in toddlers, struggling with
my husband to raise a seventeen-month-old and an almost three-year-old and
hold down two jobs between us at the same time. With a cynical snort I threw
down the magazine and wondered how romantic Gottliebs life would be once
the actual infant arrived. I didnt expect that I would have the chance to nd
out.
In March 2008, the Atlantic featured an update on Gottliebs thoughts about
love and motherhood. With the urgent title, Marry Him! The Case for Settling
For Mr. Good Enough, Gottlieb, now a seasoned mother, urges would-be
choice moms to get over their pickiness and settle for the guy already in their
lives, the guy with the annoying habit of yelling Bravo! in movie theaters,
the guy with the halitosis or abysmal sense of aesthetics.
29

What happened? Did Gottliebas some choice moms eventually dolook at
her beloved toddler and ache for the tragic absence of his father in her sons
life? Well, no. The thrust of the piece is this: A husband would be great be-
cause raising a child is a heck of a lot of work and having someone to help
clean the house, bring in some income, and throw a ball with the kid at the
park while you get to sit on a blanket and rest would be, well, terric. And
thats it. Gottliebs sage advice to unmarried women considering going the
single-mom route (Dont do it! Get over your pickiness! Marry a nice man and
raise your children with him!) is based solely on the testimony of a tired-out
woman who has discovered that not only is there no romance in raising a baby
on your own,
these single-mom books fail to mention that once you have a baby alone,
not only do you age about 10 years in the rst 10 months, but if you dont
have time to shower, eat, urinate in a timely manner, or even leave the
house except for work, where you spend every waking moment that your
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13
child is at day care, theres very little chance that a manmuch less The
Oneis going to knock on your door and join that party,
30
but also that its really, really exhausting.
In Gottliebs vision, Mr. Good Enough is little more than a gloried house
boy, not really an intellectual or social equal, and certainly (because this is-
sue never merits a mention in her piece) of no importance to the child as the
childs father.

Still, reading Lori Gottleib on what happens after the sperm and
egg become a baby would be sobering for any woman pondering ordering
sperm off a websiteif she read it.
But if the would-be choice mom happened to ick on the television instead,
she would encounter a different story. For example, on the January 15, 2007,
episode of the Today show, host Meredith Viera moderated a debate on the
choice-mom issue.
31
The exchange featured family psychologist Brenda Wade,
an attractive African-American therapist in a warm pink sweater set who, lean-
ing comfortably on a sofa opposite Viera, exhorted female viewers to make a
power choice to become single moms. Women are hardwired for bonding
she told viewers; they feel that deep, deep urge to have children. Women
need children because they want to grow and learn about themselves.
When pressed about the emotional needs of children to know and be in a
relationship with their fathers, Wade condently asserted that because choice
moms are generally older and might never have been married (and thus di-
vorced) in the rst place, their children are in a different category and will not
be harmed by their moms power choice.
32
(At Dr. Wades website, one can
purchase not only her Power Choices book, but also a self-transformation kit
that includes power choice note cards and a candle.)
33
Or maybe our would-be choice mom decided to drop by the bookstore on
her lunch hour. There she can nd Single Mothers by Choice: A Guidebook for
Single Women Who Are Considering or Have Chosen Motherhood, or Choosing
Single Motherhood: The Thinking Womans Guide, or any number of other vol-
umes including the popular Knock Yourself Up: No Man? No Problem: A Tell-All
Guide to Becoming a Single Mom, by Louise Sloan.
34
Not long after the publication of Knock Yourself Up in 2007, a British newspa-
per featured a long interview with its Park Slope, Brooklyn-based author. Now
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14
44, Sloan lives with her young son, who was conceived not, as Sloan had
fantasized, in her twenties, through a candlelit ceremony in which she and her
then long-term girlfriend Joan tenderly inseminated each other in their apart-
ment in San Francisco, butlying in stirrups in some doctors ofce with the
sperm of some complete stranger being introduced to my uterus through a
catheter!
35
Sloan went on to write a book (Knock Yourself Up) about the whole thing.
Part tell-all, part advice, part survey of todays breed of choice mom, the book
dishes on the highs and lows of having babies with men you have never met.
One of the highs choice moms consistently agree upon: Theres no man under-
foot. Sloan writes about Anne, who has one daughter by an ex-boyfriend,
and another by a donor, and who says: I have one kid whos all mine, and
nobody can ever f--- with that, and another kid who I always have to do this
dance [with her father] of how shes raised.
36
Now lets say our would-be choice mom bypassed the bookstore and instead
went to church on Sunday. Surely there she would hear a different message?
Maybe not. Support for women making the power choice of single parent-
hood can come from surprising corners. In her 2006 Single by Chance, Mothers
by Choice: How Women Are Choosing Parenthood without Marriage and Creat-
ing the New American Family, Rosanna Hertz shares the remarkable story of
Lily, a committed Christian from the Midwest who, as a teacher in Boston, re-
alized that her dream was to have a baby alone through articial insemination:
Bubbly and outgoing, she never lost her Midwestern friendliness and di-
rectness, but even she hesitated before she approached the pastor of her
church with her crazy question: should she become a mom on her own?
She fully expected her pastor to reprimand her for defying church tradi-
tion. But she was stunned by his reaction:
I walked out of there and my eyes were just wide. I thought, Oh no,
he didnt just shut down this road Im on. He said, Its completely
natural that you want to be a mother, of course you want to be a
mother. And of course, it would be more perfect if you had a hus-
band. But you would be a great mom. And this church community
loves you, and I know they will support you in this.
37

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15
Lilys pastor then recommended that she bring her question to the church el-
ders. Hertz relates Lilys words:
And I went to talk to them about it when I was more sure I was going to
do it and I was thinking the same thingthey are not going to approve of
this.I was crying as I was talking about it because it was bittersweet. I
really was torn. I wanted to be a mom, but I didnt want to do it this way.
You know? And I nished telling them what I was thinking about, and
there was this silence. And then the woman who hired me ten years earlier,
she reached over and grabbed my arm and said, Well, bless your heart!
That is so brave. And then there was silence and she said, Im getting
goose bumps thinking that we might get to support you in this.
38
Lily also checked in with the principal at the middle school where she taught.
The principal and head of her department were sympathetic:
The principal asked [Lily] to think about how and what she would tell her
students. This gave her pause. She decided that if she went forward with
her plan and if she became pregnant, she would tell the students that she
had been inseminated in a doctors ofce. She especially wanted to convey
to the students that there was no sexual misconduct on her part: she had
not made a mistake but instead had chosen a sexless route to mother-
hood.
39
Single Father by Choice
Starring opposite the choice mom (but not having much interaction with her; in
fact, his drama takes place on another stage down the hall) is the single father
by choice. He hasnt achieved acronym status yet, so lets go ahead and give
him one now: the SFBC.
Browse newspapers around the world and read glowing reports of the proud
new SFBC.
First stop, the United Kingdom. Meet Ian Mucklejohn, father of three. In 2001,
at the age of 54, Mucklejohn became the father of triplets conceived with an
egg donor and a separate gestational surrogate mother, both living in the U.S.
(Gestational surrogate refers to a woman who carries an embryo that was
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16
conceived with another womans eggs. A traditional surrogate carries a baby
conceived with her own eggs.) Mucklejohn readily admits he used services in
the U.S. because one is not allowed to buy a womans eggs in Britain; nor can
one circumvent the right of the surrogate mother to decide to keep the child
if she changes her mind after the birth.
40
By contrast, in Californiaa destina-
tion of choice for gay and single would-be fathers around the worldanything
goes. A man can purchase eggs, pick a surrogate, and head home with three
babies. His only remaining and sometimes signicant legal struggle is to con-
vince local authorities to provide the children citizenship and birth certicates
with a blank in the space for mother. Mucklejohn fought and won this battle
in the U.K. and is thus a pioneer of the emerging global SFBC movement
men who, unlike women, must leap additional biological and legal hurdles to
conceive and raise a child who has no relationship with the other biological
parent.
41
Next stop India, where in 2005 forty-six-year-old accountant Amit Banerjee
became the nations rst SFBC. Ironically, the IVF doctor who performed the
procedures sits on the Indian Council of Medical Research, which, with the
National Academy of Medical Sciences, comprises the two organizations over-
seeing ethics regulations for reproductive technologies in India. Dr. Sudarshan
Ghosh Dastidar enthused that the new father was a perfect candidate for ART
(articial reproductive technology). As a physician I could not deny him the
available technology that hundreds of childless couples are opting to fulll
their dreams of a family.
42
Hoping to head off a national debate, Dr. Ghosh
Dastidar continued, inexplicably: One cannot deny the right of procreation to
a married adult, who unfortunately in this case was divorced. But he is nan-
cially stable to support a child and has a family that is more than willing to
bring the child up. And what about the loss of ever knowing his mother for
the child? The good doctor replies with a question, What about a child whose
mother dies on the delivery bed? In other words, some children already begin
life under the gravely tragic circumstances of their mother dying in childbirth.
Is it not the right of would-be parents intentionally to create children with,
according to the doctor, virtually the same experienceand is it not the obliga-
tion of doctors to help them achieve this?
SFBCs, gay or straight, are also popping up all over the U.S. For example, Andy
Abowitz, a successful, single gay man living in Philadelphia, twice paid a twen-
ty-ve-year-old married doctoral student to donate her eggs and a gestational
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17
surrogate to carry the pregnancy, which resulted in a girl and, twenty months
later, twin boys.
43
The egg donor commented, When I got (the pictures), I was
so surprised by how much [the girl] resembled me when I was that age. She
enthused, I think its really fantastic when children are born into situations
where theyre wanted that much. And while its true that Abowitz seems to
want these children very much, how will they make sense of an egg donor and
surrogate mother who did not want them? How will they make sense of what
mother even means when they have a genetic mother and a separate birth
mother, neither of whom are in their daily lives? Such questions apparently do
not concern Abowitz, who proudly tells the reporter, Technology has allowed
me to do this and society has allowed me to do this.
Abowitz is certainly correct that societyor at least, the nearby state of Mary-
landhas allowed him to do this. The year after Abowitzs story aired on a
Baltimore television station, Maryland decided to settle the issue of how to
handle surrogate mothers and the birth certicate. Their conclusion? Keep them
off of it. In a 43 decision handed down on May 16, 2007the day after Moth-
ers Daythe Maryland Court of Appeals, the states highest court, ruled that a
surrogate mother who has no genetic relationship to the baby she is carrying
does not have to be listed as the mother on the birth certicate. The decision
stemmed from the case of twins born in 2001 in the Washington, D.C., suburbs
to a gay father, where the court decided neither to recognize the egg donor as
a mother (even though she does have a genetic relationship to the children),
nor to appoint counsel for the children.
Although judges in other jurisdictions have allowed a blank to be left in the
space for mother on birth certicates of children conceived through sur-
rogates, this was the rst time a high court had used a states Equal Rights
Amendment to make the ruling, according to the attorney who argued the
2001 case. The court ruled, in essence, that men who can prove they have no
genetic relationship to a child can be ruled not to be the father, so the same
principle should apply to women.
44
For Marylands highest court these twins
became ofcially, legally and otherwise, motherless.
In Americas reproductive technology Wild West, courts are generally all too
happy to stay out of it or, when necessary, to help out (clearing up that birth
certicate issue, for instance), but sometimes a judge gets wind of whats up
and gets angry. Unfortunately, for a situation to draw judicial wrath someone
else has to mess up colossally rst.
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18
In 2004, Stephen F. Melinger, an unmarried, fty-eight-year-old New Jersey
schoolteacher, contracted Zaria Nkoya Huffman, of South Carolina, through a
Pennsylvania brokerage agency to carry his child while her husband was away
on active duty in military service. (A considerable number of U.S. surrogates
are married to military men, and thus their prenatal health care and delivery
costs are shouldered byyou guessed ityou and me.)
45
Huffman conceived
twin girls. When the due date neared, Melinger and Huffman traveled to Indi-
ana, where Melinger checked into a hotel room near the hospital to await the
delivery. After their birth the infant twins spent their early days in neonatal in-
tensive care. In the intensive care unit, Melinger aroused the concern of nurses
when he arrived for a visit with the twins with a live pet bird on the arm of his
suit jacket, and on another occasion appeared to have bird feces on his shirt.
Unit nurses also noted that Melinger was planning to drive the girls back to
New Jersey by himself, and did not seem to be aware of the kind of care they
would need or to have made any provisions to care for them once home. The
nurses alerted authorities and a judge was brought in on the case.
In a ery letter that was reprinted in local media, Marion Superior Court Judge
Marilyn Ann Moores expressed outrage over the whole matter. She condemned
the brokerage of children and asked U.S. Attorney Susan Brooks to review the
case and the director of the surrogacy agency that arranged it. Moores wrote:
There seems to be no concern regarding the emotional impact on children
who learn that they, in effect, were bought and paid for and that their mothers
gave birth as a means of obtaining money.
46
The twins were removed from
Melingers custody and put in foster care.
Posthumous Conception
For some single mothers there is another, albeit less common, way of obtaining
sperm, one that brings another layer of social sympathy for the mother, addi-
tional assurance that dad will not get involved in the childs life, and an extra
layer of pain for the child. This way of achieving a pregnancy is called post-
humous conception: conceiving a baby with the sperm of a dead man.
Like motherlessness, a fathers death before his childs birth was once the stuff
of grave misfortune, the excruciating plot twist in novels and lms, the subject
of classic poetry (especially if the father died at war)a heartbreaking story
of love, sex, death, and new life happening in the span of nine months. Think
SER 243
19
of how the killing of Wall Street Journal reporter Daniel Pearl shook the na-
tion and became the subject of a major motion picture, in part because of the
compounded tragedy that Pearls wife was pregnant with their son when he
was brutally murdered. While the scenario might seem dreadfully romantic in
the movies, most people would agree that in real life avoiding such a tragedy
would absolutely be the right thing to do for a child. But not everyone feels
that way.
After a man dies, his sperm can live up to about thirty-six hours in his body.
It is possible for doctors to harvest and freeze living sperm within this time
frame. The sperm can then be used in the same way that vials of frozen sperm
are used in articial insemination procedures worldwide. For some time, men
with cancer and other illnesses for which the treatment might cause infertil-
ity and who might wish to have children later have been encouraged to store
sperm in advance of treatment. In the event the man dies, one can certainly
sympathize with a grieving and perhaps childless widow who considers using
the sperm to have a child to carry on the memory of her husband. After all,
her husband consented to having his sperm stored for this purpose, they were
married to one another, and the fact that the sperm exists (and will also even-
tually die if it is not used) is a painful reminder for a woman desperate to
keep a connection to her lost love. But if she uses the sperm she is conceiving
a child already burdened with a grieving mother and a dead father.
Beyond this scenario there are other even more complicated situations involv-
ing posthumous conception. For example, when an unmarried man dies, do
his parents have the right to retrieve his sperm to create the grandchild they
desperately want? Some say yes, especially if he was their only child. In Dallas,
Texas, when twenty-one-year-old Nikolas Evans died from a head injury after
a st ght, his mother harvested and stored his sperm, hoping to nd a sur-
rogate and someday raise her own grandchild.
47
In Russia, a mother used her
deceased sons harvested sperm and a surrogate mother to create a grandchild
she also planned to raise alone.
48
The Russian state challenged her right of par-
entage, refused to name her as the legal mother, and placed the child in state
care.
What about a girlfriend? Does she have the right to harvest her boyfriends
sperm, even if he did not consent to such an arrangement before his death? A
court in Iowa thinks so. In September 2007, the Des Moines Register reported
SER 244
20
a case in which a twenty-three-year-old man was critically injured in a motor-
cycle accident.
49
Hooked up to machines and with little brain activity, he was
expected to die soon. The mans girlfriend and his parents asked the hospital
to harvest his sperm so that his girlfriend could have his child after his death.
The hospital refused. The mans parents appealed to the court and obtained an
emergency hearingand won.
What about the state? Does it have interest in harvesting sperm? Perhaps. In
Israel, with the approval of the army, a group called New Family has helped
hundreds of Israeli soldiers who agree to store and sign over rights to their
sperm to their wives or serious girlfriends before going off to battle. In strik-
ing support of what might be called dead fathers rights, New Family chair-
woman Irit Rosenblum said she believes that a person should still be able to
father a child even when he is no longer alive.
50

And what about strangers? Can they get access to a dead mans sperm? If there
is a purported shortage of men willing to donate sperm, maybe yes. The state
of Western Australia has a policy limiting the number of offspring that can be
conceived with one mans sperm; they also do not allow importation of sperm
from other nations, since sperm banks in other countries do not comply with
their policies. Consequently, there is not an abundance of donor sperm in
Western Australia. In response to these circumstances, two doctors proposed
that sperm be harvested from dead men in order to address the sperm donor
shortage crisis. Many in Australia were alarmed, including Tangled Webs, a
group that advocates for the rights of donor-conceived persons. One of the
groups leaders, Myfanwy Walker, wrote in a letter to the West Australian
newspaper:
The proposals by Anne Jequier and Bruce Bellinge to harvest sperm from
deceased men is not only seriously macabre but in direct conict with the
best interests of the child to be created from such posthumous donations.
It seems it is easy to forget that a human being will be conceived with
needs and rights of their own, their life extending long beyond the serious
problem of clinics not having enough gamete donors (and presumably a
somewhat smaller bank balance).I was created via donor conception,
a practice based on the same reckless postulating exhibited by Jequier and
Bellinge. Apparently no one considered that I might want to know my bio-
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21
logical father and half siblings, that I might feel a need to connect with that
unknown and unrecognised part of myself, that I might feel a deep loss and
confusion from the inability to reconcile this feeling of being somewhat
alien in the family that raised me and, most tortuously, that the decision
to create me in such a way was intentional.Unlike those of us conceived
with living donors, however, people conceived via posthumous donations
will have to grapple with knowing they were conceived via cadaver.
51
Cloning?
There is yet another potential way to create an intentional one-parent family,
a method no one has admitted to achieving yet, but one that could succeed
any day: reproductive cloning. Not too long ago that process induced universal
gasps of horror. No longer.
52
While the revelation that Hwang Woo-suk, the once-prominent South Korean
stem cell researcher, had fabricated large portions of his data threw the stem
cell research eld temporarily in disarray, intense discussion of therapeutic
cloning in the media in recent years has nevertheless made the public much
more comfortable with and even enthusiastic about the idea of cloning for
some purposes. In May 2005, the South Korean cloning accomplishment made
front-page headlines around the world, but news later that month that a team
of scientists at the University of Newcastle in Britain had also created cloned
human embryos barely elicited a yawn. Cloning had already become old news.
Many nations have banned reproductive cloning but allow varying degrees of
therapeutic cloning.
53
Yet few people realize that the only difference between
therapeutic and reproductive cloning is whether the cloned embryo is im-
planted in a womans womb. The technology to implant the embryoin-vitro
fertilizationhas been in wide and ever-increasing use since 1978.
Has anyone implanted a cloned embryo in a womans womb? A fringe group
called the Raelians claimed to have accomplished this in 2002, but the reports
were unconrmed. So far, no reputable scientist has reported doing so. But
how much time remains before that happens?
Britains Guardian newspaper ran an astonishing article on May 20, 2005: Pro-
cess Holds Out Hope for Childless Couples. The process is reproductive clon-
ing. Among the experts quoted were Robert Edwards, who pioneered in-vitro
SER 246
22
fertilization and created the worlds rst test tube baby, Louise Brown, in
1978. Edwards told a conference audience that reproductive cloning should be
considered for patients who have exhausted all other forms of treatment. For
example, it would be helpful for people who cannot produce their own sperm
or eggs.
54
At that same conference, James Watson (who with Francis Crick discovered the
structure of DNA in 1953) argued that there is nothing inherently wrong with
cloning, saying, Im in favour of anything that will improve the quality of an
individual familys way of life.
55
Critics point out that cloning in animals led to numerous stillbirths, deformities,
and deaths shortly after birth before succeeding in a live, apparently healthy
animal (and even those animals can develop serious health problems later).
Prof. Edwards responds that pre-implantation genetic screening of embryos will
take care of all that. With enormous condence in the ability of medical sci-
ence to detect every defect in an embryoand with casual concurrence with
the routine discard of all embryos that are not acceptablehe remarked that
very soononly healthy embryos will be implanted during assisted reproduc-
tion. The birth of a child with defects after fertility treatment will be a thing
of the past.
Edwards concluded with conviction: If we stand back and say it cant be
done, this is letting our patients down.
56
Edwards and Watson are joined by a growing number of the worlds leading
bioethicists who have already gone on record calling for the legalization of
human cloning. These include Udo Schuklenk, co-editor of Bioethics, one of
the worlds leading bioethics journals, on his Ethx Blog; D. Elsner of the Uni-
versity of Melbourne in the Journal of Medical Ethics; and Hugh McLachlan of
Glasgow Caledonian University, who published a vigorous defense of human
cloning in the prestigious New Scientist magazine.
57
For now, it is a biological fact that all children have a mother and a father. This
might well change. Forget about having to buy sperm or eggs from donors or
deal with surrogate mothers who want to receive baby pictures. Cloning is the
ultimate one-parent familya family in which the child has, literally, only one
parent. For adults intent on safeguarding their parental rights, cloning would
be a dream come true.
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23
TWO-PARE NT FAMI LI E S
Married Mother and Father
The main player on the intentional two-parent family scene has been around
for a long time and is otherwise known as the married mother and father.
This remains a popular option for todays would-be parents. Despite wide-
spread divorce and high rates of single-parent childbearing, quite a few pro-
spective parents still choose someone of the opposite sex to fall in love with
and marry before they have children together (or sometimes the woman be-
comes pregnant unexpectedly and the couple will even marry before their
child is born).
When at all possible, the married mother and father usually opt to conceive
children the old-fashioned way, through sexual intercourse (or what our par-
ents generation quaintly called making love). The married mother and father
can be found pretty much everywhere, from the parks of San Francisco and
Seattle to the streets of the edgiest neighborhoods of New York. Diverse and
resilient, the married mother and father family has for millennia put down roots
everywhere in the world. Generally thriving wherever planted, the fruit this
family produceschildrenis among the hardiest and healthiest in the world.
For it turns out that changes in family structure patterns over the past several
decades have given social scientists an opportunity to discover what having a
married mother and father actually does for children. By now, the evidence is
substantial. Having a married mother and father is correlated with increased
physical and mental health, as well as general life happiness, academic and in-
tellectual performance, behavioral success at school, and graduation from col-
lege.
58
These children are also more likely to build successful family relation-
ships when they reach adulthood.
59
Children growing up with married mothers
and fathers are less likely to live in poverty and suffer its related problems.
60

They are also less likely to suffer from physical or sexual abuse, abuse drugs or
alcohol, become involved in criminal or violent behavior, or engage in early
sexual activity and premarital childbearing.
61
Even when controlling for selection effects that could help explain such out-
comes, marriage is nevertheless linked to higher levels of health and happiness
and lower levels of alcohol and drug abuse for children and adults. Marriage
is also a wealth-creating institutionmarried couples on average earn more,
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24
save more, and build more wealth compared to people who are single or live
together.
Researchers are also nding that having parents who just live together is not
as good for children, on average, as having parents who are married. Adults
who live together are more similar to singles than to married couples in terms
of physical health
62
and emotional well-being and mental health,
63
as well as
in assets and earnings.
64
Children living with parents in cohabiting unions have
outcomes more similar to children living with single parents than to children
from intact marriages.
65
Even biological fathers in cohabiting unions who live
with their children are not as involved and affectionate with their children as
are biological fathers who are married and share a home with their children.
66
One major problem is that cohabiting unions are much less stable than mar-
ried unions. A recent study found that 50 percent of children born to cohabit-
ing couples have parents who split up by the time they are ve years old, as
compared to 15 percent of children born to married couples.
67
Couples who
live together on average report relationships of lower quality than do married
couples, with those living together reporting more conict, more violence, and
lower levels of satisfaction and commitment.
68
Even biological parents who live
together have poorer quality relationships and are more likely to split up than
parents who marry.
69
These differences might occur in part because people
who choose to live together are less committed to each other.
70
Same-Sex Marriage and Parenting
Since same-sex marriage was made the law of Massachusetts by a 2003 state
supreme court decision, the debate about gay marriage has exploded on the
U.S. national scene. In 2008, Connecticuts high court legalized same-sex mar-
riage and New York State began recognizing same-sex marriages legally con-
tracted outside the state. That same year, the California Supreme Court passed
same-sex marriage with a law that was later overturned by voters in Proposi-
tion 8. That ballot initiative, in turn, was later declared unconstitutional by the
court, with more challenges from both sides likely. In 2009, same-sex marriage
became legal for all Iowans, while Vermont became the rst state to legalize
same-sex marriage by legislative rather than judicial action. The legislatures of
Maine and New Hampshire followed suit the same year. In Washington, D.C.,
same-sex marriage became legal in 2010. In New York State, in 2011.
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25
Looking abroad, between 2001 and 2010, the Netherlands, Belgium, Canada,
Spain, Norway, South Africa, and Argentina were among the nations to legalize
gay marriage, sometimes in the midst of heated debate. Additional U.S. juris-
dictions and states, and countries such as France and Britain, legally recognize
same-sex relationships through domestic partnerships or civil unions.
What do we really know about childrens experiences when they do not grow
up with both their mother and father? In many areas we know a great deal. In
others, we need to learn more.
Increasing numbers of people realize that marriage has important benets for
children. What many do not realize, however, is that existing research suggests
that there is something about the marriage of a childs biological mother and
father that carries these benets. Marriage alone does not make the difference.
For example, children raised in families where a biological parent is married to
a stepparent appear more like children of single parents than children of mar-
ried parents on many important social indicators.
71

Some advocates for legalized same-sex marriage claim that it will be good for
children because the children will have two married parents. But the stepfamily
data suggests it may not be that simple. We do not know how much the poorer
outcomes in stepfamilies are due to the history of family dissolution or other
problems unique to stepfamilies and how much is due to the child being raised
in a home with a (non-biological) stepparent.
Most stepparents are without question good people who do their very best to
raise the children in their care. Nonetheless, it is vital for those shaping family
policy to be acquainted with the large body of research that shows that chil-
dren raised by non-biologically-related adults are at signicantly greater risk of
abuse. Many are not aware of the considerable research that reveals that their
mothers boyfriends and their stepfathers abuse children more often on average
than their fathers doand that children are especially at risk when left in the
care of their mothers boyfriends. More than seventy reputable studies docu-
ment that an astonishing numberanywhere from one-third to one-halfof
girls with divorced parents report having been molested or sexually abused
as children, most often by their mothers boyfriends or their stepfathers.
72
A
separate review of forty-two studies found that the majority of children who
were sexually abusedappeared to come from single-parent or reconstituted
families.
73
Researchers Martin Daly and Margot Wilson conclude: Living with
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26
a stepparent has turned out to be the most powerful predictor of severe child
abuse yet.
74
The elds of evolutionary biology and psychology yield some insights into why
children are, on average, far safer with their biological parents. David Popenoe,
family scholar and sociology professor emeritus at Rutgers University, sums up
the research this way:
From the perspective of evolutionary psychology, the organization of the
human nuclear family is based [in part on]a predisposition to advance
the interests of genetic relatives before those of unrelated individuals, so-
called inclusive tness, kin selection, or nepotism.
75
With respect to chil-
dren, this means that men and women have likely evolved to invest more
in children who are related to them than in those who are not.
76
The world
over, such biological favoritism seems to be the rule.
77
Of course, to recognize that adults tend to favor their biological children is not
to say that this predisposition is necessarily or always a good thing. Rather, it
is to recognize that this tendency is highly common and probably even hard-
wired, or biologically primed, into humans. Ideally, all of us would be as
deeply committed to and concerned for other peoples children as we are for
our own, but practically speaking the human race is not there yet.
The example of adoption, however, remains an inspiration. When the state
carefully screens prospective adoptive parents and these parents receive social
support for their role as parents, and particularly when adopted children can
be raised from birth by parents who are committed to one another over the
long haul, most of the outcomes for such children dont look a lot different
from those raised by their biological married parents, and are certainly bet-
ter than if they were raised in an abusive, neglectful, or otherwise inadequate
home. So again, while biology is not everythingbiological parents can fail
their children, and adoptive parents are generally highly committed and loving
parentsresearch reveals that biology does matter.
What relevance does this research have to same-sex marriage and parenting?
The two persons in a same-sex couple cannot both be the biological parents of
the child. In many same-sex unions, children are brought into the union from
previous relationships. Even children born to same-sex couples are conceived
using third-party donorssperm or egg donors, and/or surrogate mothers.
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27
One could argue that the family structure most of these families most closely
resemble is that of a stepfamily, a family structure in which one parent is the
biological parent of the child and the other is not.
78
Only when a same-sex
couple adopts a child do they have a symmetrical relationship to the child, that
is, both are non-biological but legal parents of the child.
There are some studies that try to address how children of gay and lesbian
parents fare. But there are challenges. Same-sex parenting has only recently be-
come more common and visible, and the numbers will always be small within
the overall population. In addition, much of the existing research looks at iso-
lated questions, such as whether children raised by same-sex couples are more
likely to be gay and lesbian themselves, or whether they identify with non-
traditional gender roles. On broader measures of child well-being, most studies
nd little difference between children of same-sex parents and other children.
But the eld of research has important limitations.
In a review essay, developmental psychologist Charlotte Patterson of the Uni-
versity of Virginia traces the trajectory of research on children raised by lesbian
or gay parents.
79
Patterson is well-placed to write such a review, as she has
been a lead author or co-author of much of such research in the U.S. She notes
that early research typically focused on children born to heterosexual parents
and raised by their lesbian or gay parent (usually the former) after divorce.
These studies tended to compare these children with children raised by di-
vorced heterosexual parents whose orientation remained heterosexual, and
typically found little difference between the two groups. Patterson observes
correctly that these ndings were useful for courts in making custody deci-
sions. However, they reveal little that is helpful about the broader experience
of children raised by lesbian mothers, since they compared children in one
kind of fatherless home (a divorced-from-a-man, lesbian mother-headed house-
hold) with children in another kind of fatherless home (a divorced heterosex-
ual mother-headed household). If both groups of children overall were suffer-
ing the well-documented effects of divorce, such problems would not appear
when comparing these two samples.
Next came studies of children who had been raised from birth by lesbian
mothers. One example, the Bay Area Families Study, included a small conve-
nience sample of children between the ages of four and nine. The children
appeared to be progressing normally on several measures. Patterson notes that
while the ndings were reassuring, it was possible that these children were not
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28
representative, since the sample was assembled by word-of-mouth. Perhaps
only high-functioning families had responded.
With that in mind, Patterson and several colleagues embarked on a research
partnership with the Sperm Bank of California, which had long served lesbian
as well as heterosexual women. This study, again, revealed little difference be-
tween the children raised by lesbian mothers and those raised by heterosexual
mothers. But, again, the researchers were comparing what I consider to be two
subgroups of an overall perhaps more troubled populationthe sperm donor
offspring. In a 2010 study colleagues and I conducted of young people con-
ceived this way, we found that compared to young people who are adopted
and to those raised by their biological parents, the sperm donor offspring, as a
group, feel more loss and confusion about identity and family, and fare worse
on outcomes related to substance abuse and delinquency.
80
Pattersons next step was to use data from the highly-regarded National Longi-
tudinal Study of Adolescent Health. She and her colleagues examined the data
on 12,000 teens and were able to isolate those whose parents said they were
in a marriage-like relationship with someone of the same sex. Unfortunately,
there were only forty-four such teens whose parents were in such a relation-
ship and who were willing to reveal it to the investigators. Nonetheless, based
on that sample, Patterson and her colleagues concluded that the qualities of
family relationships rather than the gender of parents partners were consistent-
ly related to adolescent outcomes.
81
Patterson noted Susan Golomboks work
in Britain and the U.S., which has relied upon similar samples that attempt to
be representative, but because of the challenges of studying this population
nonetheless include only small numbers of typically young children.
With a somewhat different perspective, an important review of studies on
same-sex parenting was prepared in 2003 by sociologist Steven Nock, who,
like Patterson, was based at the University of Virginia (he passed away in
2008). After reviewing several hundred studies available at that time, Nock con-
cluded that they all contained at least one fatal aw of design or execution
and not a single one of those studies was conducted according to general ac-
cepted scientic standards of research.
82
Problems and limitations that Nock and other reviewers noted at the time in-
clude:
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29
n the absence of nationally-representative samples used in studies on same-sex
parenting (Patterson and her colleagues have since taken advantage of the
National Longitudinal Study of Adolescent Health data)
n outcome measures were limited
n studies often relied on a mothers report of her parenting rather than objec-
tive measures of the childs well-being
n the virtual absence of long-term studies that follow children of same-sex par-
ents to adulthood
But the biggest problem by far, Nock noted, was that the vast majority of the
studies compared single lesbian mothers to single heterosexual mothers.
83
They
tell us nothing about how these children compare to children raised by their
biological mother and father.
In summer 2010, much attention was given to a study published in Pediatrics
that claimed that children of lesbian mothers actually do better than children of
heterosexuals. However, like nearly all earlier studies, this one relied on a con-
venience samplein this case 154 prospective lesbian mothers who between
1986 and 1992 volunteered for a study that was designed to follow planned
lesbian families from the index childrens conception until they reached adult-
hood.
84
It may well be higher-functioning couples who volunteer to have their
parenting skills and their childrens behavior studied.
Earlier that same summer my colleagues and I released our study of sperm
donor offspring. Our sample was drawn from a web-based panel of one mil-
lion American households who had signed up to receive surveys on a wide
variety of topics. Among our 485 sperm donor offspring were thirty-nine who
were conceived to lesbian couples (the rest were conceived to single mothers
by choice or heterosexual married couples). Our study also had comparison
groups of 562 young adults who were adopted as infants and 563 who were
raised by their biological parents.
85

We found that the adult donor offspring of lesbian couples were not that dif-
ferent in many ways from other donor offspring in their concerns, for example,
about accidental incest, kinship confusion, longings to know more about their
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30
ethnic background, and issues of trust in their families. And although in some
ways the donor offspring of lesbian mothers are faring better than other donor
offspring, substantial minorities still report distress and sadness over their ori-
gins and the absence of their biological father in their lives, and more than half
report curiosity about their biological father and his family. The donor offspring
of lesbian mothers were also twice as likely as those raised by their biologi-
cal parents to have struggled with substance abuse issues.
86
These ndings are
provocative and troubling. Without question, they speak to the need for more
attention to and research about the possible difculties these young people
might face.
For now, it is too simple to assume that, for children, having two moms or two
dads is just the same as having a mom and a dad. The reality for children of
same-sex couples is much more likely to be highly nuanced. One thirty-year-
old man raised by lesbian mothers writes:
When I was younger, I was very aware of the assumption: two women plus
a son equals a fucked up guy. You get these very concerned liberal report-
ers asking, Didnt you miss your dad? Wasnt that hard? This is an issue
that cant be boiled down to a sound bite. There is a real story to the whole
question of my father, but then there was this public persona that I felt I
had to present. [My lesbian mothers] werent coming to me and saying,
Dont talk about [your feelings about not knowing your dad.] You have
to present yourself to be just ne. It was internal pressure. I felt protective
of my family. You are aware of the political issue. You are aware of what
you are saying and how they will judge you.
87
As any other child does, children raised by same-sex couples love their par-
ents. Many of them appear to want the right of marriage for their parents. But
these children may also worry about their parents, who face social stigmas, and
may not want to add to their burden by expressing a sense of loss about their
own absent biological parent. It is possible that these children, like some who
are raised in divorced or single-parent or stepfamilies, also struggle with the
absence of both mother and their father in their daily lives.
Despite the slim evidence available about same-sex parenting and children
up to this point, a number of professional organizations in the United States
including the American Psychological Association, the American Psychiatric
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31
AUGUST 2001: New York Times runs front-page review article summarizing
research on the importance of two biological parents for child well-being.
Association, and the American Academy of Pediatricianshave already em-
braced same sex-marriage and parenting.
There are two problems with this. First, to make their case these organizations
have relied on the same limited studies I described earlier. Second, these orga-
nizations are acting in direct contradiction to other mainstream professional or-
ganizations and institutions that until recently have stressed the research reveal-
ing the overall benets to children of the married, two-parent biological family.
Consider this simple chart:
BEFORE November 2003 Massachusets court decision mandating
legalization of same-sex marriage and making it the first U.S. state to
have this option:
APRIL 2003: National Council on Family Relations releases fact sheet stating the
importance of both biological parents for child well-being.
JUNE 2003: U.S. Census Bureau releases report saying that its data reveals
importance of two-parent families for child well-being.
JUNE 2002: Child Trends research brief concludes that the family structure
that most helps children is two biological parents in a low-conict marriage,
emphasizing that its not just two parents but two biological parents that seems
to make the difference.
JULY 2004: American Psychological Association releases statement supporting legal
recognition of same-sex marriage, in part because it will be better for the children.
AFTER November 2003 Massachusets court decision mandating
legalization of same-sex marriage:
JULY 2006: American Academy of Pediatricians, in their journal Pediatrics, calls
for same sex- marriage rights, stating that denial of such rights harms children.
MAY 2005: American Psychiatric Association votes to support legal recognition of
same-sex marriage; supporting documents say it will be better for the children.
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32
Since late 2003, none of the organizations or institutions that previously af-
rmed the importance for children of the married, two-parent biological family
have made such bold, clear statements on the matter again. In essence, they
and other leaders in this country have either gone silent on the issue or have
embraced a small body of limited data to say that same-sex marriage and par-
enting is just ne for children.
I would rather that we wait and let a generation of young people raised by gay
dads and lesbian moms grow up and tell social science researchersand all of
ushow they feel about mothers and fathers, what they lost, what they gained,
what they needed and if they got it. I would prefer to let them tell us if anti-
gay stigma was their only problem or if they faced other problems as well.
In the meantime, these new policies are already having effects. There are af-
rmative early reports that use of third-party donors to conceive children does
appear to be increasing in jurisdictions that have recognized same-sex marriage
or similar arrangements, as couples with new legal protections now seek assis-
tance from fertility clinics to achieve pregnancies.
A 2007 report from Britain claimed that Lesbians and single women in Britain
are increasing their share of donor insemination, accounting for 38% of such
treatment last year compared with 28% in 2003 and 18% in 1999.
88
Especially
noteworthy is that this trend, if the numbers are veriable, was occurring be-
fore 2008. For decades, and even after civil partnerships were legalized in Brit-
ain in 2004, British fertility law has said that the childs need for a father must
be taken into account when offering fertility treatments. Despite that clause,
rates of lesbian and single women inseminated by clinics have been rising. In
May 2008, after a long and heated national debate, the fertility treatment au-
thority dropped the need for a father clauseremoving the last policy barrier
for lesbians and single women to access donor insemination services in the
nations clinics.
89

In Massachusetts, a December 2007 news report read:
Since the legalization of same-sex marriage there has been a marked in-
crease in the number of gay couples seeking assisted reproduction, a medi-
cal center specializing in in vitro fertilization said.Each year were
seeing an annual increase of about 50 percent in the number of same-sex
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33
couples coming to us for IVF to have their children and build their fami-
lies, said Dr. Samuel Pang, Medical Director of Reproductive Science Cen-
ter of New England. RSC has eight locations throughout New England
and is the seventh largest medical practice of its kind nationwide. I dont
know how much equal marriage rights for gay and lesbian couples has
affected the upward shift, but it seems to be the trend over the last three or
four years.
90

Turn next to Denmark, which passed a law in 1989 allowing gays and lesbi-
ans to enter registered partnerships. In 2006 the parliament then passed a law
allowing lesbian couples and single women the right to obtain free articial
insemination at publicly-funded hospitals. Mikael Boe Larsen, chairman of the
Danish National Association for Gays and Lesbians, said, People are almost
euphoric, people are crying, and especially the lesbians are extremely happy
since it is a governmental approval of their family form.
91

In other nations, too, there is evidence that marriage rights and rights to arti-
cial reproductive technologies are seen to go hand in hand. In 2005 in Victoria,
Australia, the Victorian Gay and Lesbian Rights Lobby released a survey of 652
gay and lesbians persons that revealed, among other things, that 98 percent of
those surveyed wanted same-sex marriage to be made legal in Australia, and
that more than 90 percent felt that gay and lesbian couples should have access
to assisted reproductive technologies such as clinical insemination of donor
sperm and IVF. Moreover, the survey revealed that 77 percent supported al-
truistic surrogacy as a right.
92

In Norway, the law afrming the right to same-sex marriage that was passed
in 2008 also afrms the right for lesbian women to have access to articial
insemination.
93
In nation after nation, the right to marriage is also interpreted
as a right to access reproductive technologies that deliberately deny children a
relationship with one or both of their biological parents.

Co-Parenting Pre-Conception Arrangements
Next, lets consider one of the newer and more surprising of the intentional
two-parent arrangements. In this model, two would-be parents look around,
see many divorced parents trying to co-parent their kids in separate homes,
and decide, hey, why not skip the falling in love, getting married and divorced
SER 258
34
part and just set up a split life for our child before the child is even conceived?
Anyonegay or straightcan enter into this arrangement, and potential par-
ents typically use insemination technology to conceive. The hoped-for outcome
is a childwithout any of the complications or obligations of a relationship
between the parents.
In summer 2005 www.parentsincluded.com was launched. This British website
was intended for lesbian and single women who wish to bear a child using
donor sperm and want both parents to play a role in the childs life. Poten-
tial sperm donors seeking to have some kind of relationship with the resulting
child were invited to enroll.
94
A more recent version of this type of website is
www.co-parentmatch.com, where you can Find Your Co-Parent or Sperm Do-
nor using a pull-down menu of options. A similar site in Canada, the LGBT
Parent Matchmaker, helps those who wish to locate and pair with one or more
opposite-sex partners with whom to conceive and co-parent a child.
95
In New
York City, the Gay, Lesbian, Bisexual and Transgender Community Center of-
fers a sperm and egg mixer where interested parties can discover just how
creative, innovative and brave LGBT people can be when it comes to exploring
the possibilities of new kinds of family structures.
96
In a particularly enterpris-
ing example, one woman ran a classied ad on a West Hollywood news web-
site that read: I am a single mom who wants to have another baby, but does
not wish to use anonymous donor sperm. If you would like to be a father with
visitation rights, send a picture and introductory letter to Kelly W.
97
In Single by Chance, Mothers by Choice: How Women Are Choosing Parenthood
without Marriage and Creating the New American Family, author Rosanna
Hertz relates the story of Annette who, at thirty-eight and single, was diag-
nosed with severe endometriosis. Encouraged by her doctor to get pregnant
soon if she wished to have children, Annette then became pregnant with a
former lover, a relationship that had ended years before.
98
Annette told the
interviewer that her former lover didnt anticipate that he would fall in love
[with the child], kind of, that he would be so emotionally bonded. And thats
what ended up happening (81).
Annette goes on: He got very involved when Ben was born and just through
the months and years of parenting, hes not faded into the background.
He just kept getting more and more interested. And at this point, theres not
any wavering about it. My son has a dad (8182). Hertz says that Annette
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35
described a weekly routine that resembles those worked out by cooperative
divorced parents (82):
We dont have set times. We didnt negotiate it or go to court or sign a doc-
ument. But its evolved into a pretty patternized [sic] kind of thing which
involves one night a week that Ben stays at his house without me, and one
night a week after school like on a Wednesday or something.And then
[some nights] his dad will come over to our house around seven-thirty or
soto do the visiting and bath and bed routine.
We also spend time usually on Sundays all together, the three of us...try to
have some time in the weekend when were all three together, because that
has become very important for John. He reallythats what keeps him in
this, is the family time. He really likes that a lot, much more than he an-
ticipated. (82)
But, Hertz explains, whereas the donor particularly liked the time spent as a
family, Annette was much more uncertain about its meaning, seeking therapy
to sort out her feelings toward John and his unexpected reemergence in her
life (82):
I have kind of mixed feelings. In one sense I do like it that its a lot easier
to take care of a kid when there are two adults around, I wont deny that.
The part of it that I dont like is I feel a little bit false in that its like playact-
ing, or pretending to be a family when were not a family. And I feel a little
bit like living a falsehood there. (82)
After reading her story, I put down the book, stared into space, and imagined
myself in conversation with Annette. These were the only words I could nd:
I dont claim to know much about you or your child. But I do know this: you
are Bens mother; John is Bens father. And a child, a mother, and a father is a
pretty core denition of a family. To pretend anything otherwise is to play an
incredible head game with your sona head game that, given all the anxiety
youre expressing, isnt even working for you. My advice is this: Give it up.
You have a beautiful son. Your son has a father, a kind man who loves him
dearly. Maybe you would like to marry the father. Maybe not. But at least stop
pretending that you havent created a familya family, sadly, divided even
before your son was conceived.
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36
Same-Sex Procreation?
By far the most egregious experimentation with two-person parenting is hap-
pening in the hard sciences, specically in laboratories at some of the worlds
leading universities. Scientists are now seeking to fuse sperm and eggs in unex-
pected ways to create human embryos for implantation in the womb.
In June 2005, researchers at Shefeld University in Britain announced that they
are now able to develop human embryonic stem cells into early forms of cells
that can become eggs and sperm. If they succeed, such work holds the poten-
tial to free same-sex couples from relying on sperm or egg donors. Instead,
they could have children genetically related to both of them.
Headlining stories worldwide were frank about the implications. The con-
sequences of such work might even mean gay couples or single men could
produce children, a reporter remarked in the June 20, 2005, Guardian.
99
The
technique raises the possibility that gay couples will be able to have biologi-
cal children, another reporter observed in the New Zealand Herald the next
day.
100
Another June 21, 2005, article about the Shefeld research and similar
work underway at Monash University in Australia headlined in Australias Her-
ald Sun: Doing Away with Donors.
101
In a story led from Copenhagen that
ran at ProudParenting.com, an American advice and support website for gay
and lesbian parents, the headline read, Stem Cell Research May Provide Hope
to Gay Couples. The article said the research is huge news for the gay and
lesbian community.
102
Other scientists are pursuing similar research goals. In 2004, scientists in Japan
succeeded in creating a mouse with the genetic material of two females and no
male.
103
They created over 450 embryos, of which 370 were implanted and ten
were born alive. Of those ten, only one survived to adulthood.
So, do children need two parents? Well, yes. But in todays family debates which
two parents can be construed as widely open to interpretation. Further, some
ask, if two parents are good for children, could three parents be even better?
Three-Parent Fami li es
Sometimes when the earth moves it doesnt make a sound. Thats what hap-
pened several years ago in Harrisburg, Pennsylvania.
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37
On April 30, 2007, a state superior court panel ruled that a child can have three
legal parents. The case, Jacob v. Shultz-Jacob, involved two lesbians who were
the legal co-parents of two children conceived with sperm donated by a friend.
The panel held that the sperm donor and both women were all liable for child
support. Arthur S. Leonard, a professor at New York Law School, observed,
Im unaware of any other state appellate court that has found that a child has,
simultaneously, three adults who are nancially obligated to the childs support
and are also entitled to visitation.
104
The case follows a similar decision handed down by a provincial court in
Ontario, Canada, in January 2007. That court also ruled that a child can legally
have three parents. In that case, the biological mother and father had parental
rights and wished for the biological mothers lesbian partner, who functions as
the boys second mother, to have such rights as well.
105
The concept of assigning children three legal parents is not unique to North
America. In 2005, expert commissions in Australia and New Zealand proposed
that sperm or egg donors be allowed to opt in as a childs third parent.
Many observers believe that children have already had three or more parents
for quite some timeafter all, many children grow up in stepfamilies or adop-
tive families. What these observers fail to acknowledge is that even in stepfami-
lies or open adoption scenarios children still have at most two legal parents. In
open adoptions, a birth mother who remains in contact with a child she has re-
linquished to another couple has no legal rights to act as a parent to that child.
Meanwhile, a stepparent cannot become a childs legal parent unless the childs
other legal (usually biological) parent has parental rights revoked or dies, and
either way the stepparent then must go through a formal adoption process to
become the childs parent by law.
When it comes to legal parenthood, this rule of two has not been breached
in the past. It has remained intact out of respect for the rights of the existing
legal parents and in recognition that plenty of conict can arise even between
two parents. Why would the state throw a third person with equal legal stand-
ing into the mix?
But today, supporters of the recent three-legal-parent proposals and rulings
have a different point of view. They say, if two parents are good for children,
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38
wouldnt three parents be better? It is true that some three-parent petitions
are brought by adults who appear deeply committed to the child in question.
In the Ontario case, both women and the father all seem devoted to the boy.
But in Pennsylvania, the sperm donor, whom the children called Papa, was
ordered to pay child support over his objections, and the lesbian co-mothers
have already split up.
106
In another recent case in Ontario, a lesbian couple
used a known donora gay friendto conceive their child. All parties in-
tended before the childs birth to seek legal parental status for the three of
them. But they never managed to initiate the legal case and eventually became
embroiled in a court battle over whether the gay fathers parenting rights can
be terminated so that the second lesbian mother can adopt the child.
107
Polyamory
Same-sex marriage is currently legal in some states and jurisdictions of the U.S.
and several nations of the world. Other arrangements for same-sex couples,
such as civil unions and domestic partnerships, are also legal in some places.
The struggle for the recognition of same-sex marriage and partnerships will
likely continue. But for some legal scholars today, same-sex marriage is not all
that interesting anymore. They have made their case. They are seeing victories
beginning to stack up in courts. The latest hot topic is polyamory.
Polyamorydened as ethical non-monogamy by its proponentsliterally
means many loves. It describes relationships involving three or more peo-
ple. One or more couples within the relationship may or may not be married
to one another (which distinguishes it from polygamy, where more than one
woman is married to the same man). Polyamorists say their relationships also
do not resemble swinging (from the 1970s), because they emphasize open
communication, respect, and ethical treatment of one another.
The debate about legal recognition of polyamorous relationshipsor some
form of group marriageis already well underway. A major report issued in
2001 by the Law Commission of Canada, Beyond Conjugality: Recognizing and
Supporting Close Personal Relationships, viewed marriage as a close personal
relationship and asked whether such relationships should be limited to two
people.
108
Its conclusion: probably not.
In An Introduction to Family Law (Oxford University Press, 2001), Gillian Doug-
las of Cardiff Law School speculated, The abhorrence of bigamy appears to
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39
stemfrom the traditional view of marriage as the exclusive locus for a sexual
relationship and from a reluctance to contemplate such a relationship involv-
ing multiple partners.
109
For Prof. Douglas, the idea that marriage means two
people is a traditional and perhaps outdated way of looking at this type of
relationship.
In 2004, Elizabeth Emens of the University of Chicago Law School published a
substantial legal defense of polyamoryMonogamys Law: Compulsory Mo-
nogamy and Polyamorous Existencein the New York University Review of
Law and Social Change.
110
Prof. Emens suggests that we view this historical
moment, when same-sex couples begin to enter the institution of marriage, as
a unique opportunity to question the mandate of compulsory monogamy.
111
Mainstream cultural leaders have also hinted at or actively campaigned for
polyamory. Roger Rubin, former vice-president of the National Council on
Family Relationsone of the main organizations for family therapists and
scholars in the United Statesbelieves the debate about same-sex marriage has
set the stage for broader discussion over which relationships should be legally
recognized.
112
The Alternatives to Marriage Project, whose leaders not long
ago were often featured by national news organizations such as MSNBC and
USA Today in stories on cohabitation and same-sex marriage, includes poly-
amory among its important hot topics for advocacy.
113
Meanwhile, the Unitar-
ian Universalists for Polyamorous Awareness hope to make their faith tradition
the rst to recognize and bless polyamorous relationships.
114
A July 2009 Newsweek story estimates that there are more than half a million
open polyamorous families living in America.
115
Reporter Jessica Bennett ar-
gued that polyamorists could soon start using that bumper sticker often found
on the cars of lesbian and gay activists: We Are Everywhere. Nearly every
major city in the U.S. has a polyamory social group of some kind. The poly-
amory magazine, Loving More, has 15,000 subscribers. Books and sex columns
with titles like Open and Opening Up are proliferating, while The Ethical Slut
(1997)widely considered the modern poly Bible
116
was recently released
in a new edition.
117
In 2006, polyamory was added to the Merriam-Webster
and the Oxford English dictionaries. Ken Haslam, curator of a polyamory
library at the Kinsey Institute and a self-professed polyamorist, remarks that
there have always been some people talking about the labors of monoga-
my, but nally, with the Internet, the thing has really come about.
118
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40
It is not unusual for children to be present in polyamorous unions. Websites for
practitioners of polyamory devote considerable space to the challenges of be-
ing a poly parent.
At one online chat room, one mom said Polyamory is what my kids know.
They know some people have two parents, some one, some three and some
more. They happen to have four. Honestly? Kids and polyamory? Very little of
it effects [sic] them unless youre so caught up in your new loves youre letting
it interfere with your parenting.
119
On this same site, another older mom advised a young poly mother-to-be who
is not sure how to manage a new baby and her poly lifestyle:
Having a childand being poly isnt exactly a cakewalk, butit is pos-
sible. Sometimes it means that you take the baby with you to go see your
OSO [Other Signicant Other], or your OSO spends more time at the house
with you, your husband, and the baby, and sometimes things will come up
where plans have to be cancelled at the very last minute because baby is
sick or something.There is a lot of patience that is needed from all parties
involved, but it can be done. The rst six months are extremely hard.
120

(Emphasis in original)
Another woman was offended by her best friends lack of support for her poly-
amorous relationship that involves a couple who have a six-year-old daugh-
ter. No matter how happy and content that kid is, according to my friend we
and her parents are undoubtedly wreaking some serious damage on her by
not completely concealing our relationship from her, the woman complains.
Sometimes intelligent, goodhearted, rational people who know you fairly well
can still hold rather irrational and bigoted opinions.
121
Another polyamorous
mother wrote that she has a simple rule for her twelve-year-old son: What
happens at Mommys house stays at Mommys house if you want to keep visit-
ing Mommy.
122
The Newsweek article features a polyamorous cluster involving Terisa, Matt,
Vera, Larry, and Scott, which also includes Matt and Veras six-year-old son. All
ve adults and the boy spend weekends together, an arrangement, one scholar
is quoted as saying, that would be ne for the boy so long as its stable. Ben-
nett notes that most polyamorists are too busy for political activism, but they
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are quite concerned about custody issues, especially after one poly mom lost
custody of her son after outing herself in an MTV documentary in 1999. (One
website warns readers: If your PolyFamily has children, please do not put
your children and family at risk by coming out to the public or by being inter-
viewed [by] the press!
123
)
Another hurdle for poly families: there just dont seem to be a lot of families
like them around. One pro-poly website despairs: One challenge that faces
poly families is the lack of examples of poly relationships in literature and
media.
124
A sister site offers the PolyKids Zine. This publication for kids sup-
ports the principles and mission of the Polyamory Society, and contains fun,
games, uplifting PolyFamily stories and lessons about PolyFamily ethical liv-
ing. Its book series includes titles such as The Magical Power of Marks Many
Parents and Heather Has Two Moms and Three Dads.
125
If polyamorists are too busy to push for marriage rights, their supporters might
ght the battle for them. In an inuential document, Beyond Same-Sex Mar-
riage: A New Strategic Vision for All Our Families and Relationships, released
in 2006, over three hundred gay and lesbian activists and their supporters
including attorneys, academics, grassroots leaders, and luminaries such as
Gloria Steinem, Barbara Ehrenreich, and well-known professors from the Ivy
Leaguescalled for legal recognition for a wide range of relationships, house-
holds and families including households in which there is more than one
conjugal partner.
126

Polygamy
No one can predict the legal future of polyamory. But in a startling develop-
ment coming from a very different direction, another challenge to the concept
of marriage and parenthood as involving two people is resurgingpolygamy, a
marriage form with deep roots in human history and still in evidence in many
parts of the world.
The debut in spring 2006 of HBOs television series, Big Love, which featured
a ctional and in some ways likeable polygamous family in Utah, propelled
polygamy to the front pages of American newspapers and put the idea of legal-
ized polygamy in play in some surprising quarters. That March, a Newsweek
article with the title Polygamists Unite! quoted an activist saying, Polygamy
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is the next civil rights battle. If Heather can have two mommies, he argued,
she should also be able to have two mommies and a daddy.
127
That weekend
on the Today show, hosts Lester Holt and Campbell Brown gave a sympathetic
interview to a polygamous family.
During the same month, the New York Times devoted much attention to the
subject of polygamy. One article featured several polygamous women watching
Big Loves pilot episode and sharing such perspectives as [Polygamy] can be
a viable alternative lifestyle among consenting adults.
128
In another piece, an
economist snickered that polygamy is illegal mainly because it threatens male
lawmakers who fear they would not get wives in such a system.
129
In an opin-
ion piece, then-columnist John Tierney argued that polygamy isnt necessarily
worse than the current American alternative: serial monogamy. He concluded,
If the specter of legalized polygamy is the best argument against gay marriage,
let the wedding bells ring.
130

Not to be outdone, the cover of the June 19, 2006, New Yorker featured three
lovely brides and a beaming groom driving away in a convertible with Just
Married scrawled across the trunk. More recently, polygamy has gone to the
heart of middle America with a TLC reality television show, Sister Wives, which
features one man, four wives (he is legally married only to one of them), and
sixteen combined kids.
It is not just Big Love and Sister Wives that are putting polygamy in play in the
West. In a development that shocked many Canadians, two government studies
released by Canadas justice department in 2006 recommended the decriminal-
ization of polygamy, with one arguing that the move was justied by the need
to attract more skilled Muslim immigrants. As a government case against a band
of polygamists in British Columbia continues to wind its way through the court
system, a Canadian civil liberties group recently published an op-ed in the
Montreal Gazette arguing that Canadas ban on polygamy should be relegated
to the scrap heap of history.
131
Across the pond, in Britain in February 2008 the government cleared the
way for husbands with multiple wives to claim welfare benets for all of their
partners.
132
A government panel recommended that as long as Muslim men
married multiple women in countries where such unions are legal, then all the
spouses should be eligible for state aid. That same year it was revealed that in
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the Netherlands polygamous marriages contracted elsewhere are commonly
registered and recognized by Dutch authorities.
133
In the U.S. and Canada a signicant number of todays legal scholars are argu-
ing, as Stanley Kurtzwho has written extensively on polyamory and polyg-
amysummarized, that the abuses of polygamy ourish amidst the isolation,
stigma, and secrecy spawned by criminalization.
134
Polygamy per se is not the
problem, they claim, only bad polygamy.
The silence from these same pro-polygamy policymakers and commentators
was deafening in spring 2008, when the state of Texas seized 437 children from
a Fundamentalist Church of Jesus Christ of Latter-day Saints compound after
receiving reports of child sexual abuse. Watching video of hundreds of pale
women wearing identical ankle-length dresses and braided hair, reading re-
ports of widespread abuse and pregnancy among girls under sixteen (including
at least one sixteen-year-old who had allegedly already given birth at least four
times), and hearing emerging details of routine spiritual marriages of young
girls to very old men should be sobering, to say the least, for those who envi-
sion polygamy as just another mutually-satisfying arrangement among consent-
ing adults. In truth, the practice of polygamy among Texas cult members has
much more in common with how polygamy has been practiced historically and
currently around the world than it does with any slickly produced episode of
Big Love.
Here are the facts: Polygamy benets powerful men. It denies less power-
ful men wives and consigns them, as young men, to the margins of society. It
denies women access to and help from one husband. It denies children any
real relationship with their fathers. It appears almost always to go hand-in-hand
with the oppression of women and abuse of girls.
Over the last couple of years I have had the opportunity to meet several young
people, men and women, raised in polygamous families in Africa. They tell
stories of growing up fearful of the other mothers in the family, of each mother
out to secure resources and attention for herself and her own children, of
unavailable fathers, and of, not surprisingly, lots of family conict. If we value
freedom, womens rights, childrens safety, and social stability, we should not
legalize polygamy.
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Given all this, why would any society that has long disavowed such unions
now make the formal move toward full legal recognition of polyamory or po-
lygamy? It is already happening incrementally in some nations. Historically, the
limitation of marriage to two people has been far more exible than its deni-
tion as a union of opposite sexes. Polygamy has ourished in many societies
and exists in many places today. Some Western nations wishing to be sensitive
to their Muslim immigrant populations are already moving towards some forms
of recognition of polygamy. In the United States in 2011, a pending court case
is offering a defense of polygamy, with lead counsel and noted legal scholar
Jonathan Turley of George Washington University arguing that the Lawrence
vs. Texas Supreme Court decision in 2003 should protect the private choices of
polygamists.
135

Another route to legalized group marriage could evolve via new court deci-
sions and expert proposals that recognize group-parenting arrangements
something already occurring in the U.S., Canada, New Zealand, and Australia.
Group-marriage proponents will likely ask: How can children with three legal
parents be denied the same rights and protections that children with only two
parents have? How can we deny legal group- parenting arrangements the right
of marriage?
Tree-Person Reproduction
As we have seen in earlier discussions about the possibilities for reproductive
cloning or same-sex procreation, exploding new intentional family forms are
not just dependent on what adults are doing in the bedroom or even in the
courtrooms. The hard sciences are also on the front lines and old-fashioned
methods such as articial insemination are just the beginning.
In September 2005, British scientists were granted state permission to create
three-parent embryos. Researchers from Newcastle University soon announced
that they had created human embryos from the combined DNA of one man and
two women, and that they hope to be able to offer the option to couples within
three to ve years. The medical reason for their research lies with the fact that
some genetic diseases are passed through mitochondrial DNAthat is, through
the DNA that oats around the nucleus of a fertilized egg cell. By placing the
nucleus of one womans egg inside the egg of another woman who is not a ge-
netic carrier of the disease, the scientists hope such research will allow women
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in danger of passing a genetic disease on to their child to have the chance to
bear healthy children of their own. The resulting child would carry the DNA
of three personsthe nuclear DNA of one woman, the mitochondrial DNA of
another woman, and the DNA found in the mans sperm cell.
136
Here we enter one of those not-uncommon gray areas in the biotechnological
revolution. Clearly, no one wants children to be born bearing painful and often
deadly mitochondrial genetic disorders. Figuring out a way to help couples
avoid passing such disorders on to their children seems like a laudable goal
(especially given that such a treatment is surely preferable to routine testing
and aborting of embryos that appear to be disabled). But what happens when
these technologies move from being used to prevent genetic disorders and are
employed instead to satisfy adult desires to have babies in unusual ways? There
are already pressures for social and legal recognition of multiple-parenting
unions. It seems plausible that people in at least some of these unions might
wish to bear a child in which all three people are the genetic parents. If we al-
ready let adults make myriad procreative decisions under the banner of repro-
ductive rights, why deny them this option?
Test cases could arise sooner than we think. Through a different route there are
already numerous childrensome of them approaching adulthoodwho argu-
ably have three biological parents. Since about 1985, it has been possible for
a woman to conceive and carry a pregnancy conceived with another womans
egg. When the woman carrying the embryo not conceived with her own egg in-
tends to be the mother, we call her the mother and the other woman the egg
donor. But when the woman who gives the egg intends to be the mother, we
call her the mother and the woman carrying the embryo conceived with that
egg the gestational surrogate. (It is confusing. Women who do the exact same
things are legally determined to be the real mother or just the egg donor or
surrogate, depending on how the adults in question wish it to be.) Either way,
the result is an embryo andultimatelya child conceived from one womans
egg, fertilized by the sperm of a man (who we call either the father or the
sperm donor), and carried in another womans womb.
In part as a result of these innovations, scientists are learning a great deal
about how the process of gestation affects the genetic development of a fe-
tus. Apparently, during gestation the embryos genetic markers are switched
on and off in reaction to the environment experienced in the womb. In other
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words, the woman carrying the embryo physiologically shapes the resulting
babys DNA, even if her egg was not used to conceive the child, and thus she
can be said to be a biological mother of the child as well. (And in fact, in the
U.S. most state statutes say that the woman who gives birth to a child is the
motherthese are among the statutes that must be circumvented to allow for
the legalization of surrogacy).
Why are the reproductive functions of motherhood split in this way? In the
beginning, would-be parents chose this method when the woman who wished
to conceive could notbecause of some health concerncarry a pregnancy,
but still had healthy eggs that were capable of being fertilized. A heterosexual
couple confronting infertility on the womans part, depending on the nature of
the infertility, could contract with a gestational surrogate mother to carry the
baby on their behalf. But increasingly, the reproductive functions of mother-
hood are also split by choice, and not just because of the intended mothers
health concerns.
Today, many in the surrogacy business claim that it is emotionally easier for the
surrogate mother to relinquish the child (and spare the commissioning parents
messy legal battles) if she is not the genetic mother of the child. If a couple
cannot provide their own egg (some heterosexual couples cannot, and all gay
male couples cannot), surrogacy brokers recommend that the commissioning
couples get their egg from one source and have the resulting embryo implant-
ed in a different woman. Its easier for everybody, they claim. The surrogate is
said not to attach to the child if she knows the baby was conceived with an-
other womans egg. The egg donor is usually out of the picture entirely. And
the commissioning parents are supposed to be able to relax and stop worrying
that the surrogate will change her mind and keep the baby in the end.
Yet percolating beneath this seemingly straightforward rationale (which nev-
ertheless has not been subjected to any real scientic investigation) is a thick
brew of classism. Look at who gay and straight couples seek out when they
look for their egg donor and their surrogate. The egg donor? Good looking,
athletic, high SAT scores, Ivy League degree a major bonus. An accomplished
cellist? Even better. What about the typical surrogate mother? Not a graduate
of an elite college, and maybe even not a college grad. Shes probably a single
mother or married to a working-class or military man, and is just looking for
some income to help her and her kids.
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So forget those tear-jerkers about surrogates with hearts of gold and parents
who will do anything for them out of gratitude. In truth, once commissioning
parents could gure out how to get a working-class surrogate to carry a baby
that was conceived with the egg of a young, gorgeous, ambitious woman who
would never dream of carrying another womans child, they embraced the op-
tion with gusto.
Meanwhile, how do children feel when the reproductive functions of mother-
hood are splitwhen they have two women who could be said to be their bi-
ological mother and perhaps another legal mother as well? How do they make
sense of the concept of motherhood? How does the story of their conception
affect their attitudes and values as they themselves approach childbearing age?
We have no idea, because nobody has ever asked them.
FOUR- AND FI V E-PARE NT FAMI LI E S
Conceiving Children with Four or Five Legal, Social, Biological,
and/or Gestational Parents
Canadian ethicist Margaret Somerville once began a talk with a description of
a New Yorker-type cartoon she had seen. It depicted a kindly woman and a
young child standing in front of six people. The woman is telling the child,
This is your intended mother, this is your intended father, this is your egg do-
nor, this is your sperm donor, this is your surrogateand this is your psychia-
trist to help you sort it all out.
Everybody laughed uncomfortably. It is painfully true that, today, children can
have as many as four or ve people who might all qualify as their legal or bio-
logical parents. Judges in some countries are beginning to assign children three
legal parents. And if as many as ve people can be the intended or biological
parents of a single child, there is no reason to think the law will stop at as-
signing that child only three legal parents. Why make the sperm donor a legal
parent but not the egg donor? Why make the egg donor a legal parent but not
the surrogate who carried the child, who shaped the childs genetic develop-
ment in the womb, and whose body will forever bear the marks of the childs
delivery? Listen, for example, to Dr. Kamal Ahuja, a physician from the London
Womens Clinic, who recently observed, The denition of a traditional family
is progressively fading. Though we had concerns some years ago, the evidence
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now is that we need not worry in terms of same-sex parenting. He went on:
Families of the future may combine up to ve parents. Regardless of culture,
the evidence is that children adapt well and its the quality of the nurturing
environment which is important.
137
Co-Parenting Bothies
Welcome to San Francisco, headquarters for the bothies movement. Google
the term bothy, and youre more likely to nd hits for Scottish hiking asso-
ciations (apparently, its also the name for the special huts built for hikers in
Scotland) than you will for a new form of intentional parenting. But follow the
newspapers of San Francisco long enough and youll catch on.
Meet new parents Bevan Dufty and Rebecca Goldfader. As San Francisco city
supervisor and an openly gay man, Dufty was something of a local celeb-
rity when he embarked on creating his intentional family. Goldfader, a nurse
practitioner, Pilates instructor, and a lesbian, joined him in the limelight when
they made the rather unusual decision to conceive a child and try, somehow,
to raise it together. A local media storm quickly brewed. Was Dufty, a lead-
ing gay rights activist, selling out? Was Goldfader joining the ranks of women
who identify as lesbian until they decide to marry and settle down with a man?
By stating publicly that they felt it was important for their child to know both
biological parents, were they implicitly criticizing the decisions made by many
other gay and lesbian parents?
Not at all, Dufty and Goldfader responded. They were merely joining the ranks
of lesbian and gay parents who want to keep both biological parents involved
in the childs life and make room, at the same time, for their own loves or life
partners. It is not unusual for gay and lesbian parents to be raising children
conceived in previous heterosexual or homosexual relationships and then
bring new lovers into the picture as parental gures. What makes the decisions
of would-be parents like Dufty and Goldfader groundbreaking is that before a
child is even conceived, they are planning how to have it allsame-sex part-
ners for each of the parents and a child who knows and spends at least some
part of childhood with both mom and dad.
About Dufty and Goldfader, the Bay Area Reporter explained, While not
romantically involved, the pair does identify as a couple and plans to live
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together, and like many traditional partnerships, theirs revolves around having
children and creating family:
When this [pregnancy] happened, I called Bevan and said, You can never
leave me, laughed Goldfader, who only half-jokingly characterizes her-
self as the wife in her relationship with Dufty. This [pregnancy] is not
changing our relationship, nodded Dufty. This is our relationship.
138
During the years that it took for them to hatch the idea and nally to get preg-
nant, both Dufty and Goldfader had already had several relationships each. But
once the child was born, in addition to each of them being a legal co-parent
of the child, they both envision[ed] that their long-term partners would have
parental roles and rights as well. They planned to buy a duplex together with
each having a oor as their own home for themselves, their future partner, and
for the child to live with each of them one week at a time. The reporter quoted
Beth Teper, executive director of Children of Lesbians and Gays Everywhere
(COLAGE), to underscore that such a plan is not at all unusual:
Queer families have been creating and forming their families in all the
ways they can throughout the last millennium. There are many gay fami-
lies that co-parent, said Teper, adding that COLAGE has several member
kids known as bothies, meaning they have two gay dads and two gay
moms. Some of those families began as four-way agreements. In other situ-
ations, romantic relationships began after the children were born to co-
parents, and the biological parents were able to add legal protections for
their lovers through contracts and court rulings later.
139
Not long after the birth of Dufty and Goldfaders child, another parent of a
soon-to-be-born bothy wrote a piece in the San Francisco Chronicle describ-
ing his own arrangement with three other people. With the child due within
weeks he remarked that he, his partner, and the lesbian couple with whom
they have conceived the child have been on the receiving end of plenty of
intrusive comments and questions as they planned their babys conception and
arrival. Dad-to-be Bill Delaney addressed some of the most frequent questions
asked in his column:
Where will our child live? Initially, he/she will live with mom while breast-
feeding. Once weened [sic], our baby will spend one week each between
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parents. By the time our child is ready to start kindergarten, we will have
either bought a home together, or separate homes within walking distance
of each other.
What about holidays/special occasions/etc.? We all come together. We will
never make our kid shuttle between parents beyond the basic living ar-
rangements.
What if one of the couples splits up? Again, its all about our child. We will
not freeze out a parent out of spite, which would be damaging to our kid.
We will also decide which residence is the best for our kids needs.He/she
will not be shuttled among four homes.
140
Delaneys sunny description of the foursomes legal agreements about the
childs life is lled with bizarre assumptions such as the idea that shuttling
back and forth between two homes every week will be ne for the child, but
they would never make our kid do more than that: He/she will not be
shuttled among four homes. (Eerily, the possibility of shuttling between three
homes is not mentioned.)
What is especially notable about Delaney and company, as well as Dufty and
Goldfader, is that these would-be parents spell out in great detail how well
everything will work out after the child is born. But I would like to read the
media stories about the foursomes who set up this kind of pre-conception ar-
rangement fteen to eighteen years ago and remain a stable foursome, carrying
out their contract as planned.
While journalists and scholars are tracking down examples of such committed
foursomes, you can check your local family court docket for stories about the
ones who do not work out. One example is the foursome in Florida written
about in Mamas vs. Papas: Two Gay Couples Fight over Custody of Child in
the July 16, 2009, Miami New Times.
Here are the facts in the case: Five years earlier, a lesbian couple began trying
to have a baby. Inseminations with anonymous donor sperm kept failing
Katherine was not getting pregnant. Then the couple started talking with
their friend Ray, a gay Air Force veteran with a partner of his own. With Rays
sperm, Katherine conceived, and the two couples planned to raise the baby
boy together.
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51
Then Katherine and her partner decided to move to California and take the
boy with them. Ray and his partner sued in 2008. After considering the case,
a Miami-Dade Circuit Court judge ruled that even though Ray was the childs
biological father, and even though the childs mother had put his name on the
birth certicate when the child was born, Ray was merely a sperm donor and
had no rights. Rays lawyer called this case the most tragic case of my ca-
reer. Katherines lawyer says she and her partner feel like their family unit is
being attacked. Ray immediately began planning his appeal.
141
Not surprisingly, once the daydream of four people orbiting agreeably around
one beloved child hits reality, it is unlikely to last for long. With parenthood,
conict abounds. Cloth diapers or plastic? Organic baby food or the cheap
stuff? Raised in your religion, mine, some combo, or none? Who will take time
off work for the doctors appointment? Who will put in the long, hands-on
hours with the child? What if the child actually has needs beyond the typical
highly needy child? What if he or she is autistic or has a heart defect? What
if the child has a deant disorder and none of the adults particularly enjoys
spending time with him? Or, what happens when one member of the foursome
gets a great job offer elsewhere or a new lover with a cuter toddler, and the
old fantasy just isnt quite as exciting anymore
Undoubtedly, some of these bothy scenarios do not even make it past the
planning stage for exactly these reasons. Not long ago, while lunching with
a friend I heard about a similar situation. My friend told me about his grown
niece, a woman raised as a pastors kid who with her new husband (whom
she married later in life) attended a mainline Protestant church. Her husband
wanted a child, she was ambivalent and probably too old to conceive, but
wanted to be sensitive to his wishes. At their church they met a lesbian couple
with whom they became friends. When they learned that the lesbian couple
also wanted a child, the two couples hatched a plan in which the husband
would inseminate one of the lesbian women and all four would raise the baby
together. The plan was derailed when her husband instead had an affair with a
woman who lived down the street and left my friends niece for that woman.
After three or four decades of widespread divorce, this is where we have ar-
rived. Our society has so normalized the divorce experience for children that
nice people (for I am certain that Dufty and Goldfader and Delaney and all the
rest are for the most part perfectly nice people) do not bat an eye about set-
ting up a split life for their child before the child is even conceived. And even
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52
if they manage to keep their four-parent units together, the children in these
scenarios will never actually live with their biological mothers and fathers at
the same time. So while all these would-be parents invest their time and energy
in rallying their foursome, scheduling their inseminations, and completing their
reams of legal paperwork, I invite them to spend at least a little time learn-
ing about the experience of those who have grown up shuttling between two
worlds.
Not long ago, with Norval Glenn of the University of Texas at Austin, I com-
pleted the rst national survey in the U.S. of grown children of divorce.
142
We
found that even young people who grew up in a so-called good divorce, one
in which their divorced parents got along reasonably well and stayed involved
in their lives, still suffered negative effects. For example:
n Even in a good divorce, half (52 percent) of young adults from divorced
families say that family life after the divorce was stressful, as compared to 6
percent from happy marriages and 35 percent from unhappy but low-conict
marriages.
n Almost a third who grew up in a good divorce (30 percent) say they were
alone a lot as children, as compared to 5 percent from happy marriages and
21 percent from unhappy but low-conict marriages.
n Half (51 percent) report they always felt like adults, even as little kids, as
compared to 36 percent from happy marriages and 39 percent from unhap-
py but low-conict marriages.
n Almost a third (29 percent) say their divorced parents versions of truth were
different, as compared to 12 percent from happy marriages and 24 percent
from unhappy but low-conict marriages.
n Over half (53 percent) say they experienced many losses in their lives, as
compared to 37 percent from happy marriages and 42 percent from unhap-
py but low-conict marriages.
The idea that a good divorce is good for children is popular. But we found
that while an amicable or good divorce is better than a bad divorce, it is inac-
curate and misleading to describe the childrens experience as good.
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53
The vast majority of young adults in our study80 percentsaid their par-
ents did not have a lot of conict after the divorce. So foursomes who want
to create a bothy would be ill-advised to write off the pain of children of
the good divorce as merely due to the divorce itself or to post-divorce con-
ict. Instead, the young adults told us that the structure of growing up in two
worlds itself created much of the stress. They felt like space cadets, never
knowing where their homework or book bag was. As they grew older it was a
burden to have to visit their parents when other kids their age never had to
think about such thingstheir parents were just there, in the background, and
taken for granted. That just as adults would nd it nearly impossible to feel at
home in two places (think about ithow many adults do it?) children do too.
That when you are always on the move it is almost impossible to form and
sustain rich relationships with family, friends, neighbors, and community. That
when you have two homes rather than one, neither place fully feels like home.
A good divorce is the best thing anyone can hope for once two parents have
already splitbut it is nonetheless a rough life for a child. So I ask San Francis-
co, and the nation, why would anyone intentionally choose this life for a child
who does not yet exist?
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54
While the language of intentional parenthood appears to have originated in
the legal sphere in the 1990s, its roots go deeper. Every child a wanted child
has long been a slogan of the pro-choice or abortion rights movement, and the
idea of planning pregnancies is at least as old as Margaret Sangers efforts to
make contraceptives legal at the turn of the twentieth century. In our cultural
dialog about pregnancy and childbearing, the idea that being planned and
wanted is critically important to child well-being is broadly accepted. Overall,
it seems to make sense that children who are wanted at the outset will have
a better shot at becoming happy, healthy young people. I came of age in the
post-Roe v. Wade era and feel like I can understand the points of view of rea-
sonable people on both sides of the abortion debate pretty well. And yet Ive
been doing a lot of thinking lately about the consequences of assuming that
intention or wantedness is a key ingredient for child well-being.

Last year, colleagues and I released a report titled My Daddys Name Is Donor:
A New Study of Young Adults Conceived through Sperm Donation. For that
study we recruited from a panel of more than one million American house-
holds 485 young adults who had been conceived through sperm donation, 562
who were adopted, and 563 who were raised by their biological parents. (For
more information about the study, see the text box on the following page.)
Our aim was to study the identity, kinship, well-being, and social justice expe-
rience of donor-conceived persons.
As I got to thinking about our results, I was struck by the fact that our study
could be seen as an attempt to examine whether and how much being want-
ed truly helps children. The rst group in our studythe donor offspring
is a sample of entirely planned, intended, and presumably ercely wanted
children. There are no accidents among the donor offspring. They are here
because their mothersand perhaps others, but in most cases most specically
their motherswanted them.
The other two groups are more mixed. We know that in the U.S. today about
half of pregnancies are unintended. I think we can assume that among the
3. THE WANTED CHILD
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My Daddys Name Is Donor:
A New Study of Young Adults Conceived through Sperm Donation,
co-investigated by Elizabeth Marquardt, Norval D. Glenn, and Karen Clark
and released by the Commission on Parenthoods Future, reports a study
on the identity, kinship, well-being, and social justice experiences of young
adults who were conceived through sperm donation. It was published by
the Institute for American Values in May 2010. The survey research rm Abt
SRBI of New York City elded the survey through a web-based panel that
includes more than a million households across the United States. Through
this method the co-investigators assembled a representative sample of 485
adults between the ages of eighteen and forty-ve who said their mother
used a sperm donor to conceive them, as well as comparison groups of 562
young adults who were adopted as infants and 563 young adults who were
The study found that, on average, young adults conceived through sperm
donation are hurting more, are more confused, and feel more isolated from
their families. They fare worse than their peers raised by biological parents
on important outcomes such as depression, delinquency, and substance
abuse. Nearly two-thirds agree, My sperm donor is half of who I am. Nearly
half are disturbed that money was involved in their conception. More than
half say that when they see someone who resembles them they wonder if
they are related. Almost as many say they have feared being attracted to or
having sexual relations with someone to whom they are unknowingly related.
Approximately two-thirds afrm the right of donor offspring to know the truth
about their origins. And about half of donor offspring have concerns about
or serious objections to donor conception itself, even when parents tell their
children the truth.
To learn more and to see tables and gures reporting the data, download a
free PDF of the 135-page report, My Daddys Name Is Donor, at FamilyScholars.
org. A summary of fteen major ndings of the study can be found on pages
7 to 14 of the report.
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56
adopted adults many were the results of unplanned pregnancies. Similarly, a
good many of those raised by their biological parents were also probably un-
planned. Among these two groups we nd all the babies who come about as a
result of messy, mostly uncontracepted sex.
So what does the study show? Does being explicitly plannedbeing most
denitely wantedspell terric child outcomes, or at least better outcomes
than for babies conceived in other ways? Actually, no. Quite the opposite. The
donor offspring, those who are without a doubt the most uniformly wanted
group at the outset, are, as a group, faring the worst. Compared to those who
were adopted, they are hurting more and are more confused. They feel more
isolated from their families. And compared to those raised by their biological
parents, they suffer more often from addiction, delinquency, and depression.

Now, lets grant that being wanted by your mother remains a very good thing.
I believe it is vitally important, not just for the child, but for the mother too.
But, perhaps, being wanted at conception is not the only factor, or even the
main factor, that matters when it comes to child well-being. Maybe what comes
nextwhat family structure the child is born into or raised inmatters as
much, if not more.
In todays debates about parenthood, the ideal of the wanted child is resound-
ing again, this time among gays and lesbians advocating for access to repro-
ductive technologies and legal recognition of their families. The buzz phrase
in todays debates is intentional parenthood. Some leaders in the gay and
lesbian community like to say proudly: None of our children are accidents.
What is there possibly to be concerned about? Theyre all intended. Theyre all
wanted.
But dig deeper and youll learn that that intention is actually a hotly con-
tested idea in todays family debates. For at least one group, the deliberate-
ness or intention with which offspring are conceived in order to be separated
from their biological parent is quite troubling. Some of the stories posted by
donor-conceived persons at The Anonymous Us Project at AnonymousUs.org
evoke these concerns about deliberate separation from fathers.
143
Or read what
Damian Adams, a donor-conceived adult living in Australia, has to say concern-
ing the difference between adoption and donor conception: the key and most
important difference is intent. Adoption, he says,
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57
is used as a last resort to ameliorate, but not solve, the tragedy of an ex-
isting child whose biological parents are unable for whatever reason to
care for it. In this situation the people who have created the child never
intentionally set out to create one that would have to be relinquished for
adoption. It occurs either through accidental conception or circumstance.
Donor conception on the other hand is a completely different kettle of sh.
Even prior to the childs conception which is deliberately preplanned, the
intent is to separate and deprive the child of one or both biological connec-
tions. It is not the result of happenstance or circumstance.
144
On the one side, advocates of family diversity argue that intention is basically
synonymous with good for children. The fact that the child is conceived on
purpose makes it good. Plans on how to raise the childwhether, for example,
the child will know and be raised by his or her own mother and fatherdont
really matter. On the other side, donor-offspring activists have a completely dif-
ferent point of view. They argue that deliberately inicting a lossthe loss of
the biological father, or mother, or bothis precisely the problem.
Let me hasten to note that few donor-offspring activists single out gay and
lesbian parents as a particular concern. The largest issue that seems to unite
most donor offspring is the strong belief that anonymity should be ended, that
they have the right to know who their biological parents are. On the question
of whether donor conception itself should be available as a means to have
children, they are more divided, with some believing that better regulation is
enough and others feeling that the practice itself should not occur.
145
When it
comes to whether gay and lesbian persons should use these technologies, my
impression is that donor-offspring activists generally either feel that donor con-
ception should be available to pretty much anyone so long as far better protec-
tions for the childs right to know are put in place, or they believe that donor
conception is not okay and they are against anyonegay, straight, married, or
notusing it. But because some of todays most vocal proponents of intention-
al parenthood are found among gay and lesbian leaders and their family law
supporters, the debate about whether intentional parenthood really is the most
important issue for child well-being necessarily gets tangled up in the debate
about gay- and lesbian-headed families.
The main point is this: the value of intentional parenthood is not a settled ques-
tion, but rather a hotly contested one. Do children do ne with one parent, or
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58
three, or ve? Do young people mourn the absence of their biological moth-
ers and fathers in their lives? Can three-person units be as stable as admittedly
already-fragile two-person units? Is there something special about trying to
keep the man and woman who make the baby together, for the sake of the
baby and each other, in what we call marriage? Are children commodities we
commission to appease adult desires, or are they vulnerable creatures with in-
dividual human dignity, whose needs must come rst? In todays global family
debate, these are the questions on the table. Nothing less than the well-being
of this and future generations of children is at stake.

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59
1. Diane Ehrensaft, Mommies, Daddies, Donors, and Surrogates: Answering Tough
Questions and Building Strong Families (New York: Guilford Press, 2005).
2. Ibid., 83.
3. Ibid.
4. Ibid.
5. John F. Storrow, Parenthood by Pure Intention: Assisted Reproduction and the
Functional Approach to Parentage, Hastings Law Journal 53, no. 597 (2002): abstract,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=310162.
6. Ibid.
7. Nancy Dowd, From Genes, Marriage, and Money to Nurture: Redening Fa-
therhood, in Genetic Ties and the Family: The Impact of Paternity Testing on Parents
and Children, ed. Mark A. Rothstein et al. (Baltimore: Johns Hopkins University Press,
2005), 86.
8. Susanne Gibson, Reasons for Having Children: Ends, Means and Family Val-
ues, Journal of Applied Philosophy 12, no. 3 (November 1995): 23140.
9. Kathleen M. Galvin, Diversitys Impact on Dening the Family: Discourse-
Dependence and Identity, in The Family Communication Sourcebook, ed. Lynn H.
Turner and Richard West (Thousand Oaks, CA: Sage Publications, 2006), 6.
10. Ellen C. Perrin, Technical Report: Coparent or Second-Parent Adoption by
Same-Sex Parents, Pediatrics 109, no. 2 (February 2002): 34144, http://pediatrics.
aappublications.org/content/109/2/341.full#sec-6.
11. Nanette Gartrell and Henny Bos, US National Longitudinal Lesbian Family
Study: Psychological Adjustment of 17-Year-Old Adolescents, Pediatrics 126, no. 1
(July 2010): 19; released online June 7, 2010, http://pediatrics.aappublications.org/
content/early/2010/06/07/peds.2009-3153.
12. ldfrmc, January 11, 2011, comment on Dione Garlick, Study Shows that Chil-
dren of Lesbian Parents Are More Well-Adjusted Than Normal Kids, Zelda Lily (blog),
Jun 24, 2010, http://zeldalily.com/index.php/2010/06/study-shows-that-children-of-
lesbian-parents-are-more-well-adjusted-than-normal-kids/.
13. ABC15.com staff, Hear Me Out: Is Lesbian Parenting Any Better or Worse than
Conventional Parenting? ABC15.com, June 16, 2010, http://www.abc15.com/dpp/
news/local_news/hear_me_out/hear-me-out%3A-is-lesbian-parenting-any-better-or-
worse-than-conventional-parenting%3F.
ENDNOTES
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60
14. Ed OKeefe, State Dept. Policy Change the Latest Gay Rights Win, Federal
Eye, Washington Post, January 11, 2011, http://voices.washingtonpost.com/federal-
eye/2011/01/state_dept_policy_change_the_l.html.
15. Donald Collins, Cathleen Jordan, and Heather Coleman, An Introduction to
Family Social Work, 3rd ed. (Belmont, CA: Brooks/Cole Cengage Learning, 2010), 348.
16. Ibid.
17. Dan Savage, The Kid: What Happened After My Boyfriend and I Decided to Go
Get Pregnant (New York: Plume, 2000), 5859.
18. By denition, no woman can choose to get pregnant by accident, although
the pseudo-accidental oops has long been popular among some married and single
women as one way of getting pregnant, and of course its not uncommon for the path-
way to pregnancy to be an ambivalent one. On the issue of adoption, I do not group
families with adopted children among intentional families. Adoptive parents become
parents of children who were generally conceived unintentionally or were otherwise
unable to be cared for by their birth parent(s). Adoptive parents do not set out seek-
ing to deny a child a relationship with his or her own father and mother, but rather to
redress, as best as possible, a childs loss stemming from not being able to be raised
by his or her own mom and dad.
19. Amy Harmon, First Comes the Baby Carriage: Women Opt for Sperm
Banks and Autonomy, New York Times, October 13, 2005, http://www.nytimes.
com/2005/10/13/fashion/thursdaystyles/13BANKS.html?pagewanted=all.
20. Ibid.
21. Emily Bazelon, 2 Kids + 0 Husbands = Family, New York Times Magazine,
January 29, 2009, http://www.nytimes.com/2009/02/01/magazine/01Moms-t.html.
22. Dahleen Glanton and Bonnie Miller Rubin, Babies Born to Single Moms Reach
Record High in U.S.: Women in their 30s and 40s Choose Not to Wait for a Spouse,
Chicago Tribune, January 21, 2007, A3.
23. Ibid.
24. Lori Gottlieb, The XY Files, The Atlantic, September 2005, 141, http://www.
theatlantic.com/magazine/archive/2005/09/the-xy-les/4172/.
25. Ibid.,143. One need hardly mention that such comments also harken uncom-
fortably to eugenic sentiments in the U.S. and Europe in the early twentieth century.
26. Ibid., 148.
27. Ibid., 150.
28. Ibid.
29. Lori Gottlieb, Marry Him! The Case for Settling for Mr. Good Enough, The
Atlantic, March 2008, http://www.theatlantic.com/magazine/archive/2008/03/marry-
him/6651/.
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61
30. Ibid.
31. NBCs Janet Shamlian reports on choice moms, followed by a debate hosted
by Meredith Vieira, Today.com, January 15, 2007, http://www.bing.com/videos/watch/
video/single-women-who-choose-motherhood/6s9ya4m.
32. Ibid.
33. Dr. Brenda Wade, Heartline Products, http://www.docwade.com/html/
products.html.
34. Jane Mattes, Single Mothers by Choice: A Guidebook for Single Women Who Are
Considering or Have Chosen Motherhood (New York: Three Rivers Press, 1994); Mikki
Morrissette, Choosing Single Motherhood: The Thinking Womans Guide (New York:
Be-Mondo Publishing, 2008); Louise Sloan, Knock Yourself Up: No Man? No Problem: A
Tell-All Guide to Becoming a Single Mom (New York: Penguin, 2007).
35. Polly Vernon, Single Gay Woman Seeks Baby. No Man Required: As the Fu-
ror over IVF Laws and Lesbians Gets Rowdier in the UK, Polly Vernon meets Louise
SloanAmericas Poster Girl for Families without Fathers, The Observer, December
2, 2007, http://www.guardian.co.uk/lifeandstyle/2007/dec/02/familyandrelationships.
gayrights.
36. Ibid.
37. Rosanna Hertz, Single by Chance, Mothers by Choice: How Women Are Choos-
ing Parenthood without Marriage and Creating the New American Family (New York:
Oxford University Press, 2006), 27.
38. Ibid., 28.
39. Ibid.
40. Hes the Daddy, BBC.com, May 17, 2006, http://www.bbc.co.uk/berkshire/
content/articles/2006/05/17/ian_mucklejohn_feature.shtml.
41. For single mothers by choice who go abroad to conceive, the childs citizen-
ship is a non-issue, especially since the mother typically returns to her native land to
give birth, and most jurisdictionscertainly those in the U.S. and U.K.are all too
familiar with issuing birth certicates listing father unknown.
42. Subhra Priyadarshini, First Surrogate Child of Single Father to Evolve Ethics
Debate, Navhind Times, October 3, 2005, available at http://news.outlookindia.com/
printitem.aspx?326587.
43. Donated Eggs Make Dads Dreams Come True: Childrens Three Parents Live
in Three Different States, Baltimore News, WBALTV.com, February 17, 2006, http://
www.wbaltv.com/r/7164899/detail.html.
44. See Associated Press, Ruling May Have Broad Implications for Prospective
Gay Dads, posted on www.365gay.com, June 2, 2007, and James M. Thunder, Moth-
erless in Maryland: Roberto de B.s Twins, op-ed, The American Spectator, July 11,
2007, http://spectator.org/archives/2007/07/11/motherless-in-maryland-roberto#.
SER 286
62
45. An online search of military wives surrogates yields multiple stories, in-
cluding Astrid Rodrigues and Jon Meyerson, Military Wives Turn to Surrogacy: La-
bor of Love or Financial Boost? ABCNews.com, October 15, 2010, http://abcnews.
go.com/GMA/Parenting/military-wives-surrogates-carrying-babies-love-money/
story?id=11882687.
46. Charles Wilson, Brokerage of Surrogate Births May Face Federal Scrutiny, As-
sociated Press, August 2, 2005.
47. Jamie Stengle, Ethical Questions over Harvesting Dead Sons Sperm, Associ-
ated Press, April 11, 2009, http://www.tulsaworld.com/news/article.aspx?subjectid=13&
articleid=20090411_13_0_DALLAS487424&rss_lnk=1.
48. Reza Omani Samani et al., Posthumous Assisted Reproduction from Islamic
Perspective, International Journal of Fertility and Sterility 2, no. 2 (August-September
2008): 96100.
49. Claire Kellett, Family Wants to Save Dying Sons Sperm, KCRG local news,
September 14, 2007 http://www.kcrg.com/news/local/9774057.html.
50. Yael Wolynetz, Hundreds of Soldiers Sign over Rights to Sperm if They Die,
Jerusalem Post, August 10, 2006, http://www.jpost.com/Israel/Article.aspx?id=31176.
51. Myfanwy Walker, letter to the editor, The West Australian, October 23, 2006.
52. The material in this report on cloning, same-sex procreation, polygamy, and
polyamory rst appeared in substantially similar form in Elizabeth Marquardt, The
Revolution in Parenthood: The Emerging Global Clash Between Adult Rights and Chil-
drens Needs (New York: Institute for American Values, 2006). The material on same-
sex parenting research has been substantially updated. Parts of the latter material will
also appear in a chapter by Elizabeth Marquardt in What Is Parenthood? (forthcoming),
a scholarly volume edited by Linda McClain and Dan Cere.
53. For those unfamiliar with the term therapeutic cloning, a helpful paragraph at
Wikipedia reads, In genetics and developmental biology, somatic cell nuclear transfer
(SCNT) is a laboratory technique for creating a clonal embryo, using an ovum with
a donor nucleus It can be used in embryonic stem cell research, or, potentially,
in regenerative medicine where it is sometimes referred to as therapeutic cloning.
It can also be used as the rst step in the process of reproductive cloning. http://
en.wikipedia.org/wiki/Somatic_cell_nuclear_transfer.
54. Alok Jha, Process Holds Out Hope for Childless Couples, Guardian, May 20,
2005, http://www.guardian.co.uk/science/2005/may/20/genetics.science.
55. Ibid.
56. Ibid.
57. Reported in Leading Bioethicist Supports Reproductive Cloning, BioEdge, no.
241, March 21, 2007, http://www.australasianbioethics.org/Newsletters/241-2007-03-21.
html; What Is Wrong with Cloning Anyway, BioEdge, no. 221, October 3, 2006,
http://www.australasianbioethics.org/Newsletters/221-2006-10-03.html; and Lets
SER 287
63
Legalise Human Cloning, Says Bioethicist, BioEdge, no. 259, August 1, 2007, http://
www.australasianbioethics.org/Newsletters/259%202007-08-01.html.
58. Steven Stack and J. Ross Eshleman, Marital Status and Happiness: A 17-Nation
Study, Journal of Marriage and the Family 60, no. 2 (May 1998): 52736; Deborah
A. Dawson, Family Structure and Childrens Health and Well-Being: Data from the
1988 National Health Interview Survey on Child Health, Journal of Marriage and the
Family 53, no. 3 (August 1991): 57384; David Popenoe, Life Without Father (New
York: Free Press, 1996); Glenn T. Stanton, Why Marriage Matters: Reasons to Believe
in Marriage in Postmodern Society (Colorado Springs, CO: Pinon Press, 1997); Ron-
ald P. Rohner and Robert A. Veneziano, The Importance of Father Love: History and
Contemporary Evidence, Review of General Psychology 5, no. 4 (December 2001):
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Hurts, What Helps (Cambridge, MA: Harvard University Press, 1994).
59. Judith Wallerstein, Julia Lewis, and Sandra Blakeslee, The Unexpected Legacy of
Divorce: The 25 Year Landmark Study (New York: Hyperion, 2000).
60. McLanahan and Sandefur, Growing Up with a Single Parent.
61. Popenoe, Life Without Father; Stanton, Why Marriage Matters; Frank Putnam,
Ten-Year Research Update Review: Child Sexual Abuse, Journal of the American
Academy of Child and Adolescent Psychiatry 42, no. 3 (March 2003): 26979; Michael
Stiffman et al., Household Composition and Risk of Fatal Child Maltreatment, Pediat-
rics 109, no. 4 (April 2002): 61521.
62. Amy Mehraban Pienta et al., Health Consequences of Marriage for the Retire-
ment Years, Journal of Family Issues 21, no. 5 (July 2000): 55986.
63. Susan L. Brown, The Effect of Union Type on Psychological Well-Being:
Depression among Cohabitors Versus Marrieds, Journal of Health and Social Behav-
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Relationship of Cohabitation and Mental Health: A Study of a Young Adult Cohort,
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Marital Status and Happiness; Arne Mastekaasa, The Subjective Well-Being of the
Previously Married: The Importance of Unmarried Cohabitation and Time Since Wid-
owhood or Divorce, Social Forces 73, no. 2 (December 1994): 66592.
64. Lingxin Hao, Family Structure, Private Transfers, and the Economic Well-Being
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mit Daniel, The Marriage Premium, in The New Economics of Human Behavior, ed.
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65. William H. Jeynes, The Effects of Several of the Most Common Family Struc-
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Private Transfers; Wendy D. Manning and Daniel T. Lichter, Parental Cohabitation
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68. Scott M. Stanley, Sarah W. Whitton, and Howard J. Markman, Maybe I Do:
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70. Stanley, Markman, and Whitton, Maybe I Do.
71. For instance, girls in stepfamilies are slightly more likely to have a teenage
pregnancy compared to girls in single-parent families, and much more likely to have
a teenage pregnancy than girls in intact, married families. Children who grow up in
stepfamilies are also more likely to marry as teenagers, compared to children who
grow up in single-parent or intact, married families. See Institute for American Values,
Why Marriage Matters: Twenty-Six Conclusions from the Social Sciences, 2nd ed. (New
York: Institute for American Values, 2005), 14.
72. Robin Fretwell Wilson writes, These studies of fractured families differ in their
estimates of the percentage of girls molested during childhood. However, regardless of
SER 289
65
whether the precise number is 50% or even half that, the rate is staggering and sug-
gests that girls are at much greater risk after divorce than we might have imagined.
She continues: Despite these studies, the idea that so many girls in fractured families
report childhood sexual abuse strains credulity. Nevertheless, with more than seventy
social science studies conrming the link between divorce and molestation, there
is little doubt that the risk is indeed real. As difcult as it is to accept, a girls sexual
vulnerability skyrockets after divorce, with no indication that this risk will subside.
Children at Risk: The Sexual Exploitation of Female Children after Divorce, Cornell
Law Review 86, no. 2 (January 2001): 256.
73. Joseph H. Beitchman et al., A Review of the Short-Term Effects of Child Sexu-
al Abuse, Child Abuse & Neglect 15, no. 4 (1991): 53756; cited in Wilson, Children at
Risk, note 9.
74. Martin Daly and Margot Wilson, Evolutionary Psychology and Marital Conict:
The Relevance of Stepchildren, in Sex, Power, Conict: Evolutionary and Feminist
Perspectives, ed. David M. Buss and Neil M. Malamuth (Oxford and New York: Oxford
University Press, 1996), 9-28; cited in Family Scholars, Why Marriage Matters: Twenty-
One Conclusions from the Social Sciences (New York: Center of the American Experi-
ment, Coalition for Marriage, Family and Couples Education, and Institute for Ameri-
can Values, 2002).
75. Citing W.D. Hamilton, Signicance of Paternal Investment by Primates to the
Evolution of Adult Male-Female Associations, in D.M. Taub, ed., Primate Paternalism
(New York: Van Nostrand, 1964), 30935.
76. Citing M.S. Smith, Research in Developmental Sociobiology: Parenting and
Family Behavior, in Kevin B. MacDonald, ed., Sociobiological Perspectives on Human
Development (New York: Springer-Verlag, 1988), 27192.
77. David Popenoe, The Evolution of Marriage and the Problem of Stepfamilies: A
Biosocial Perspective, in Alan Booth and Judy Dunn, ed., Stepfamilies: Who Benets?
Who Does Not? (Hillsdale, NJ: Lawrence Erlbaum Associates, 1994), 9.
78. Even in stepfamilies, the second parent gure must adopt the child in order
to be a legal parent to that child. And in order to adopt the child, the childs other
biological parent must give up his or her parental rights or have them terminateda
grueling process and one not undertaken lightly by courtswith the result that most
stepparents remain in a quasi-legal relationship with the children in their care.
79. Charlotte J. Patterson, Children of Lesbian and Gay Parents, Current Direc-
tions in Psychological Science 15, no. 5 (October 2006): 24144.
80. See Executive Summary and Fifteen Major Findings, in Elizabeth Marquardt,
Norval D. Glenn, and Karen Clark, My Daddys Name Is Donor: A New Study of Young
Adults Conceived through Sperm Donation (New York: Commission on Parenthoods
Future, 2010), http://www.familyscholars.org/assets/Donor_summ_ndings.pdf.
SER 290
66
81. Patterson writes in Children of Lesbian and Gay Parents:
There were no signicant differences between teenagers living with same-sex
parents and those living with other-sex parents on self-reported assessments of
psychological well-being, such as self-esteem and anxiety; measures of school out-
comes, such as grade point averages and trouble in school; or measures of family
relationships, such as parental warmth and care from adults and peers. Ado-
lescents in the two groups were equally likely to say that they had been involved
in a romantic relationship in the last 18months, and they were equally likely to
report having engaged in sexual intercourse. The only statistically reliable dif-
ference between the two groupsthat those with same-sex parents felt a greater
sense of connection to people at school favored the youngsters living with same-
sex couples. There were no signicant differences in self-reported substance use,
delinquency, or peer victimization between those reared by same- or other-sex
couples (Wainright & Patterson, 2006). (242)
82. Afdavit of Steven Lowell Nock, Halpern v. Attorney General, Ontario Supe-
rior Court of Justice, Court File No. 684/00, 2, http://marriagelaw.cua.edu/Law/cases/
Canada/ontario/halpern/aff_nock.pdf.
83. See Maggie Gallagher and Joshua K. Baker, Do Mothers and Fathers Matter?
The Social Science Evidence on Marriage and Child Well-Being, iMAPP policy brief
(Washington, DC: Institute for Marriage and Public Policy, February 27, 2004).
84. Nanette Gartrell and Henry Bos, US National Longitudinal Lesbian Family
Study: Psychological Adjustment of 17-Year-Old Adolescents, Pediatrics 126, no. 1
(July 2010), 2836, http://pediatrics.aappublications.org/content/126/1/28.full.
85. Elizabeth Marquardt, Norval D. Glenn, and Karen Clark, My Daddys Name Is
Donor: A New Study of Young Adults Conceived through Sperm Donation (New York:
Commission on Parenthoods Future, 2010), http://www.familyscholars.org/assets/
Donor_FINAL.pdf.
86. Ibid.; see summary of Fifteen Major Findings, 714.
87. Jesse Gilbert, quoted in Abigail Garner, Families Like Mine: Children of Gay
Parents Tell It Like It Is (New York: Harper Paperbacks, 2005), 9.
88. Family Edge, weekly newsletter, no. 115 (August 1, 2007).
89. In summer 2008 the newly enacted law was tabled until the fall, so that further
debate could be had, after a public outcry ensued over the laws passage.
90. 365Gay.com Newscenter Staff, Mass. Gay Marriages Lead to Increase in IVF,
www.365gay.com, December 7, 2007.
91. Insemination Rights for Lesbians, Reuters, June 2, 2006, posted at www.news.
com.au.
92. Attacks on gays and lesbians high Victoria News, August 3, 2005, http://
news.ninemsn.com.au.
SER 291
67
93. The Associated Press notice that ran in the New York Times on June 18, 2008,
read:
Gay men and lesbians in Norway will be granted the same rights as heterosexu-
als to marry and to adopt children under a law approved by the upper house of
Parliament. It replaces a 1993 law that gave gay men and lesbians the right to
enter civil unions, but did not permit church weddings or adoption. The law also
allows lesbians to have articial insemination. Individual churches and clergy
members may perform weddings for gay men and lesbians, but will not be legally
obligated to do so.
94. The link was www.parentsincluded.com. The site is no longer active.
95. See http://groups.yahoo.com/group/to-parent/. Note that the term co-parent
evolved during the divorce revolution, as mothers and fathers were urged to be ef-
fective co-parents in the wake of their split. The term is now also commonly used
to describe situations in which two or more men and women (who may be gay or
straight) plan to conceive and raise a child together without being involved in a ro-
mantic relationship and usually without living together.
96. Center Kids, Center Families Sperm and Egg Mixer! The Gay, Lesbian, Bisexu-
al and Transgender Community Center, http://www.gaycenter.org/node/2452.
97. The ad listed a P.O. Box and advised: Must be white, in good health, no fam-
ily history of ADD or ADHD please. Website viewed July 12, 2005; link is no longer
available.
98. Rosanna Hertz, Single by Chance, Mothers by Choice: How Women Are Choos-
ing Parenthood without Marriage and Creating the New American Family (Oxford and
New York: Oxford University Press, 2006), 81. Further references to this work will be
cited parenthetically within the text.
99. James Meikle, Sperm and Eggs Could Be Created from Stem Cells, Says New
Study, Guardian, June 20, 2005, http://www.guardian.co.uk/science/2005/jun/20/
genetics.health.
100. Maxine Firth, Stem Cell Babies Could Have Single Parent, New Zealand Her-
ald, June 21, 2005, accessed online.
101. Milanda Rout, Doing Away with Donors, Herald Sun (Australia), June 21,
2005, accessed June 22, 2005.
102. Stem Cell Research May Provide Hope to Gay Couples, Proud Parenting.
com, June 30, 2005, accessed July 2, 2005.
103. See Bijal P. Trivedi, The End of Males? Mouse Made to Reproduce without
Sperm, National Geographic News, April 21, 2004, http://news.nationalgeographic.
com/news/2004/04/0421_040421_whoneedsmales.html.
104. Associated Press, Sperm Donor Ordered to Pay Child Support, Pittsburgh
Post-Gazette, May 10, 2007, http://www.post-gazette.com/pg/07130/784968-100.stm.
SER 292
68
105. In January 2009 in a Toronto family court, a lesbian couple who had used a
known donora gay friendlost a challenge. The lesbian biological mother and
the gay biological father are the childs two legal parents. The three parties (the les-
bian couple and the father) had agreed in a contract before the birth that they would
seek a three-parent adoption, which would require a court challenge, but they never
did. The lesbian mothers had a falling-out with the gay father, who has maintained a
relationship with the child all along. The couple sought to have the second lesbian
mother named as the childs adoptive second parent, a move that would require termi-
nation of the fathers parental rights. The father refused and a family court judge sided
with him. Advocates commented that this ruling could have a chilling effect in Canada
on lesbian couples choosing to use a known rather than an anonymous sperm donor.
See Shannon Kari, Gamete Donor Rights: Court Back Parental Right of Known Sperm
Donor; Ruling May Affect Lesbian Couples, National Post (Canada), January 20, 2009.
106. Parts of this argument were rst published in Elizabeth Marquardt, When
3 Really Is a Crowd, op-ed, New York Times, July 16, 2007, http://www.nytimes.
com/2007/07/16/opinion/16marquardt.html.
107. Shannon Kari, Ruling may affect lesbian couples, National Post, January 30,
2009, accessed online January 30, 2009.
108. See Law Commission of Canada, Beyond Conjugality: Recognizing and Sup-
porting Close Personal Adult Relationships (Ottawa: Law Commission of Canada, 2001),
cited in Dan Cere, Council on Family Law, The Future of Family Law: Law and the
Marriage Crisis in North America (New York: Institute for American Values), 32, http://
www.marriagedebate.com/pdf/future_of_family_law.pdf.
109. Gillian Douglas, An Introduction to Family Law, Clarendon Law Series (Ox-
ford: Oxford University Press, 2001), 3031, cited in Cere, Future of Family Law, 32.
110. Elizabeth Emens, Monogamys Law: Compulsory Monogamy and Polyam-
orous Existence, New York University Review of Law and Social Change 29, no. 2 (Feb-
ruary 2004): 277376.
111. Ibid., 7.
112. See Roger Rubin, Alternative Lifestyles Today in Handbook of Contemporary
Families, ed. Marilyn Coleman and Lawrence H. Ganong (Thousand Oaks, CA: Sage
Publications, 2004), 3233, cited in Cere, Future of Family Law, 32.
113. Ways to Be Unmarried, Alternatives to Marriage Project, www.unmarried.
org.
114. Unitarian Universalists for Polyamorous Awareness, www.uupa.org.
115. Jessica Bennett, Only You. And You. And You. PolyamoryRelationships
with Multiple, Mutually Consenting PartnersHas a Coming-out Party, Newsweek, July
29, 2009, http://www.newsweek.com/2009/07/28/only-you-and-you-and-you.html.
116. Ibid.
SER 293
69
117. Dossie Easton and Janet W. Hardy, The Ethical Slut: A Practical Guide to Poly-
amory, Open Relationships, & Other Adventures, 2nd ed. (Berkeley, CA: Celestial Arts,
2009). The previous edition was published under the title, The Ethical Slut: A Guide to
Innite Sexual Possibilities, by Dossie Easton and Catherine A. Liszt (Greenery Press,
1997).
118. Bennett, Only You.
119. LiveJournal, http://www.livejournal.com/community/polyamory/890327.html,
accessed fall 2005. Link is no longer live.
120. Ibid.
121. Ibid.
122. Ibid.
123. Bennett, Only You.
124. See Polyamory-Related Books, http://www.polychromatic.com/kids.html.
125. The Polyamory Society Children Educational Branch, http://www.
polyamorysociety.org/children.html.
126. Executive summary, Beyond Same-Sex Marriage: A New Strategic Vision for
All Our Families and Relationships, www.beyondmarriage.org.
127. Elise Soukup, Polygamists, Unite! They Used to Live Quietly, but Now
Theyre Making Noise, Newsweek, March 19, 2006, http://www.newsweek.
com/2006/03/19/polygamists-unite.html.
128. Felicia R. Lee, Real Polygamists Look at HBO Polygamists; In Utah, Holly-
wood Seems Oversexed, New York Times, March 28, 2006, http://query.nytimes.com/
gst/fullpage.html?res=9806E3D91430F93BA15750C0A9609C8B63.
129. Robert H. Frank, Polygamy and the Marriage Market: Who Would Have the
Upper Hand? New York Times, March 16, 2006, http://www.nytimes.com/2006/03/16/
business/16scene.html.
130. John Tierney, Whos Afraid of Polygamy? New York Times, Opinion, March
11, 2006, http://query.nytimes.com/gst/fullpage.html?res=9C04EEDA1331F932A25750C
0A9609C8B63&pagewanted=all.
131. Keith Fraser, Canadian Polygamy Ban Should Be Relegated to Scrap Heap:
Civil Liberties Group, Montreal Gazette, March 17, 2011, http://www.montrealgazette.
com/Polygamy+should+relegated+scrap+heap+civil+liberties+group/4460606/story.
html.
132. Britain Clears Way for Polygamy Benets, Washington Times, February 12,
2008, http://www.washingtontimes.com/news/2008/feb/12/britain-clears-way-for-
polygamy-benets/.
133. Netherlands Recognizes Polygamous Islamic Marriages, NIS News Bulletin,
August 12, 2008, available at http://europenews.dk/en/node/13034.
SER 294
70
134. Stanley Kurtz, Polygamy Versus Democracy; You Cant Have Both, The
Weekly Standard, June 5, 2006, http://www.weeklystandard.com/Content/Public/
Articles/000/000/012/266jhfgd.asp. Kurtzs columns at National Review Online have
documented many events and emerging arguments relating to polyamory and po-
lygamy. See, for example, his Big Love, from the Set: Im Taking the People behind
the New Series at Their Word, March 13, 2006, National Review Online, http://old.
nationalreview.com/kurtz/kurtz.asp.
135. Jonathan Turley, One Big, Happy Polygamous Family, Opinion, New York
Times, July 21, 2011, http://www.nytimes.com/2011/07/21/opinion/21turley.html?amp.
136. See Mark Henderson, Scientists Win Right to Create Human Embryo with
Three Genetic Parents, The Times, September 9, 2005, http://www.timesonline.co.uk/
tol/news/uk/article564535.ece; and Ben Hirschler, Scientists Create Three-Parent
Embryos, Reuters, February 5, 2008, http://www.reuters.com/article/2008/02/05/us-
embryo-parents-idUSL0516465820080205.
137. Rosie Beauchamp, Sister Set to Become Surrogate for Gay Brother, BioNews
584, November 15, 2010, http://www.bionews.org.uk/page_82404.asp.
138. Zak Szymanski, Dufty Enters New ArenaParenthood, Bay Area Reporter,
April 6, 2006, http://www.ebar.com/news/article.php?sec=news&article=719.
139. Ibid.
140. Bill Delaney, What If It Were Your Family? San Francisco Chronicle, Octo-
ber 19, 2006, available at http://articles.sfgate.com/2006-10-19/opinion/17317753_1_
wilson-s-comments-parents-moms.
141. Natalie ONeill, Mamas vs. Papas: Two Gay Couples Fight over Custody of
Child, Miami New Times, July 16, 2009, http://www.miaminewtimes.com/2009-07-16/
news/mamas-vs-papas-two-gays-couples-ght-over-custody-of-child/.
142. Reported in Elizabeth Marquardt, Between Two Worlds: The Inner Lives
of Children of Divorce (New York: Crown Publishers, 2005). See also www.be-
tweentwoworlds.org.
143. The Anonymous Us Project was founded by Alana S., who also blogs at
FamilyScholars.org: http://familyscholars.org/bloggers/#alanas.
144. Damian Adams, My Daddys Name Is AdoptionNOT! Donor Conceived
Perspectives: Voices of the Offspring (blog), May 18, 2011, http://donorconceived.
blogspot.com/2011/05/my-daddys-name-is-adoption-not.html.
145. See summary of Fifteen Major Findings, My Daddys Name Is Donor, 714.
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New York, New York 10023
212.246.3942
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1
INSTITUTE
FOR
AMERICAN
VALUES
EST. 1988
A Report Released Internationally by
the Commission on Parenthoods Future
A New Study of Young Adul ts
Concei ved Through Sperm
Donati on
ELIZABETH MARQUARDT, NORVAL D. GLENN,
AND KAREN CLARK, CO-INVESTIGATORS
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i
Tis report is released internationally under the auspices of the
Commission on Parenthoods Future, an independent, nonpartisan group
of scholars and leaders who have come together to investigate the status
of parenthood and make recommendations for the future.
Te lead co-investigator of this report, Elizabeth Marquardt, is
director of the Center for Marriage and Families at the Institute for
American Values. Te Centers online site for engagement is www.
fami lys chol ars. org.
Te co-investigators would like to thank Jeremy Uecker of the
University of Texas at Austin for analysis; Chintan Turakhia at Abt SRBI
for his expertise and helpfulness; David Mills for copy editing; and the
members of the Commission on Parenthoods Future for their advice.
Elizabeth Marquardt would like to thank her colleagues at the Institute
for American Values for their extraordinary support of and commit-
ment to this project. Te views in this report are atributable to the
co-investigators alone.
Copyright 2010, Institute for American Values. All rights reserved.
No reproduction of the materials contained herein is permited without
the writen permission of the Institute for American Values.
isbn: 1-931764-20-4
New York, NY 10023
Tel: (212) 246-3942
Fax: (212) 541-6665
i nfo@ameri canvalues. org
www. ameri canvalues. org
Acknowledgements
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i i
Te Commission on Parenthoods Future is an independent, nonpar-
tisan group of scholars and leaders who have come together to investigate
the status of parenthood as a legal, ethical, social, and scientifc category
in contemporary societies and to make recommendations for the future.
Commission members convene scholarly conferences; produce books,
reports, and public statements; write for popular and scholarly publications;
and engage in public speaking. Its members include the following:
Don Browning, University of Chicago Divinity School (Emeritus)
Daniel Cere, McGill University (Canada)
Karen Clark, FamilyScholars.org, co-investigator
Norval D. Glenn, University of Texas at Austin, co-investigator
Kathleen Kovner Kline, University of Colorado School of Medicine
Suzy Yehl Marta, Rainbows Inc.
Elizabeth Marquardt, Institute for American Values, co-investigator
David Popenoe, Rutgers University (Emeritus)
Stephen G. Post, Center for Medical Humanities, Compassionate
Care, and Bioethics at Stony Brook University
David Quinn, Iona Institute (Ireland)
John Wite, Jr., Emory University
Peter Wood, National Association of Scholars
About the
Commission
on Parenthoods
Future
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i i i
Meethodlogy
and Li mitations
5
15
27
37 51
77 82 119
21
Executive Summary
^
Tanfgled Webs
How Do Donor
Of fspri ng Fare?
Religion & Race:
The Surpri si ng Case of
Todays Donor Of fspri ng
Is Donor Conception
Just Li ke Adoption?
Intrroduction
In
tr
o
d
u
c
tio
n
The Daddy Box
Tangled Webs
Secrets & Anonymity
Limitations
Methodology & Tables & Figures Recommendations
61
69
71
Rights
Table of Contents
F
i
f
t
e
e
n

M
a
j
o
r

F
i
n
d
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g
s
7
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5
EXECUTIVE
SUMMARY
In 1884, a Philadelphia physician put his female patient to sleep
and inseminated her with sperm from a man who was not her
husband. Te patient became pregnant and bore a child she
believed was the couples biological ofspring.
Today, this event occurs every day around the world with the willing
consent of women and with the involvement of millions of physicians,
technicians, cryoscientists, and accountants. Te United States alone has
a fertility industry that brings in $3.3 billion annually. Meanwhile, fertility
tourism has taken of as a booming global trade. A number of nations bill
themselves as destinations for couples who wish to circumvent stricter laws
and greater expense in their own countries in order to become pregnant
using reproductive technologies. Te largest sperm bank in the world,
Cryos, is in Denmark and ships three-quarters of its sperm overseas.
In the U.S., an estimated 30,000-60,000 children are born each year
through sperm donation, but this number is only an educated guess. Nei-
ther the industry nor any other entity in the U.S. is required to report on
these vital statistics. Most strikingly, there is almost no reliable evidence,
in any nation, about the experience of young adults who were conceived
in this way.
Tis study is the frst efort to learn about the identity, kinship, well-
being, and social justice experiences of young adults who were conceived
through sperm donation. Te survey research frm Abt SRBI of New York
City felded our survey through a web-based panel that includes more than
a million households across the United States. Trough this method we
assembled a representative sample of 485 adults between the ages of 18
and 45 years old who said their mother used a sperm donor to conceive
them. We also assembled comparison groups of 562 young adults who
were adopted as infants and 563 young adults who were raised by their
biological parents.
We learned that, on average, young adults conceived through sperm
donation are hurting more, are more confused, and feel more isolated from
their families. Tey fare worse than their peers raised by biological parents
on important outcomes such as depression, delinquency and substance
abuse. Nearly two-thirds agree, My sperm donor is half of who I am.
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6
Nearly half are disturbed that money was involved in their conception.
More than half say that when they see someone who resembles them they
wonder if they are related. Almost as many say they have feared being
atracted to or having sexual relations with someone to whom they are
unknowingly related. Approximately two-thirds afrm the right of donor
ofspring to know the truth about their origins. And about half of donor
ofspring have concerns about or serious objections to donor conception
itself, even when parents tell their children the truth.
Te title of this report, My Daddys Name is Donor, comes from a
t-shirt marketed to parents of babies who were donor conceived. Te
designers of the shirt say its just meant to be funny. But we wondered
how the children feel when they grow up.
Tis unprecedented, large, comparative, and very nearly representa-
tive study of young adults conceived through sperm donation responds
to that question. Te extraordinary fndings reported in the stories, tables
and fgures that follow will be of concern to any policy maker, health
professional, civic leader, parent, would-be parent, and young or grown
donor conceived person, anywhere in the world. An extensive list of
recommendations is found at the conclusion.
We aim for nothing less than to launch a national and international
debate on the ethics, meaning, and practice of donor conception, starting now.
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7
FIFTEEN MAJOR
F
I
N
D
I
N
G
S
Young adults conceived through sperm donation (or donor 1.
ofspring) experience profound struggles with their origins
and identities.
Sixty-fve percent of donor ofspring agree, My sperm donor is
half of who I am. Forty-fve percent agree, Te circumstances of my
conception bother me. Almost half report that they think about donor
conception at least a few times a week or more ofen.
Te role of money in their conception disturbs a substantial number
of donor ofspring. Forty-fve percent agree, It bothers me that money
was exchanged in order to conceive me. Forty-two percent of donor
ofspring, compared to 24 percent from adoptive families and 21 percent
raised by biological parents, agree, It is wrong for people to provide their
sperm or eggs for a fee to others who wish to have children.
When they grow up, donor ofspring are more likely to agree, I
dont feel that anyone really understands me, with 25 percent of them
agreeing strongly, compared to 13 percent of the adopted and nine percent
of those raised by biological parents.
Family relationships for donor ofspring are more ofen char- 2.
acterized by confusion, tension, and loss.
More than half (53 percent) agree, I have worried that if I try to
get more information about or have a relationship with my sperm donor,
my mother and/or the father who raised me would feel angry or hurt.
Seventy percent agree, I fnd myself wondering what my sperm donors
family is like, and 69 percent agree, I sometimes wonder if my sperm
donors parents would want to know me.
Nearly half of donor ofspring (48 percent) compared to about a
ffh of adopted adults (19 percent) agree, When I see friends with their
biological fathers and mothers, it makes me feel sad. Similarly, more
than half of donor ofspring (53 percent, compared to 29 percent of the
adopted adults) agree, It hurts when I hear other people talk about their
genealogical background.
Forty-three percent of donor ofspring, compared to 15 percent
of adopted persons and six percent of those raised by their biological
f rom My Daddys Name
i s Donor: A New Study
of Young Adults Conceived
Through Sperm Donation
Elizabeth Marquardt, Norval D. Glenn,
and Karen Clark, co-investigators
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8
parents, agree, I feel confused about who is a member of my family and
who is not.
Almost half of donor ofspring (47 percent) agree, I worry that
my mother might have lied to me about important maters when I was
growing up, compared with 27 percent of the adopted and 18 percent
raised by their biological parents. Similarly, 43 percent of donor ofspring,
compared to 22 percent and 15 percent, respectively, of those raised by
adoptive or biological parents, agree, I worry that my father might have
lied to me about important maters when I was growing up.
When they grow up, well over half (57 percent) of donor ofspring
agree, I feel that I can depend on my friends more than my family about
twice as many as those who grew up with their biological parents.
Donor ofspring ofen worry about the implications of inter- 3.
acting with and possibly forming intimate relationships with
unknown, blood-related family members.
Well over half of donor ofspring58 percentagree, When I see
someone who resembles me I ofen wonder if we are related, compared
to 45 percent of adopted adults and 14 percent raised by their biological
parents.
Nearly half46 percentof donor ofspring, but just 17 percent of
adopted adults and 6 percent of those raised by their biological parents,
agree, When Im romantically atracted to someone I have worried that
we could be unknowingly related. Similarly, 43 percent of adult donor
ofspring, and just 16 percent of adopted adults and 9 percent of those
raised by their biological parents, agree, I have feared having sexual rela-
tions unknowingly with someone I am related to.
Donor ofspring are more likely to have experienced divorce or 4.
multiple family transitions in their families of origin.
Te married heterosexual parents of the donor ofspring are unusu-
ally likely to have divorced, with 27 percent of donor ofspring reporting
that their parents divorced before the respondent was age 16, compared
to 14 percent of those who were adopted and 25 percent of those raised by
their biological parents. (Te comparison between the parents of donor
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9
ofspring and those of the adopted is apt, because in both cases the parents
would likely have turned to donor conception or adoption later in their
marriages, when marriages on average are more stable.) See Figure 4. (p. 117)
Overall, 44 percent of donor ofspring experienced one or more
family transitions between their birth and age 16, compared to 22 percent
of the adopted, and 35 percent of those raised by their biological parents.
See Figure 3a. (p. 116)
Donor ofspring are signifcantly more likely than those raised 5.
by their biological parents to struggle with serious, negative
outcomes such as delinquency, substance abuse, and depression,
even when controlling for socio-economic and other factors.
Donor ofspring and those who were adopted are twice as likely as
those raised by biological parents to report problems with the law before
age 25.
Donor ofspring are about 1.5 times more likely than those raised
by their biological parents to report mental health problems, with the
adopted being closer to twice as likely as those raised by biological parents
to report the same thing.
Donor ofspring are more than twice as likely as those raised by
biological parents to report substance abuse problems (with the adopted
falling between the two groups). See Figure 1. (p. 115)
Donor ofspring born to heterosexual married couples, single 6.
mothers, or lesbian couples share many similarities.
In our survey, 262 of the donor ofspring report they were born
to heterosexual married couples, 113 to single mothers, and 39 to lesbian
couples.
While at frst glance the number of those born to lesbian couples
might seem rather small, this study is notable for having even 39 respondents
who grew up with this experience. Most studies of the ofspring of lesbian
or gay parents are based on a smaller or similar number of respondents, and
they typically lack the comparison groups that our survey ofers. However,
we must caution that due to the size of the sample of ofspring of lesbian
SER 308
10
couples, most reported fndings related to that particular group can only
suggest diferences or similarities, although where signifcant diferences
emerge they are noted.
All three groups of donor ofspring appear fairly similar in a number
of their atitudes and experiences. For example, they are all about equally
likely to agree that they feel confused about who is a member of their family
and who is not, that they fear being atracted to or having sexual relations
with someone they are unknowingly related to, that they worry their
mother might have lied to them about important maters, and that they
have worried about hurting their mothers or others feelings if they tried
to seek out their sperm donor biological father. See Table 2. (p. 109)
At the same time, there appear to be notable diferences between 7.
donor ofspring born to heterosexual married couples, single
mothers, and lesbian couples.
Overall, donor conceived persons born to single mothers seem to
be somewhat more curious about their absent biological father, and seem
to be hurting somewhat more, than those born to couples, whether those
couples were heterosexual or lesbian.
Donor ofspring born to single mothers are more likely than the
other two groups to agree, I fnd myself wondering what my sperm donors
family is like. Most (78 percent) born to single mothers agree, compared
to two-thirds of those born to lesbian couples or married heterosexual
parents. With regard to My sperm donor is half of who I am, 71 percent
of those born to single mothers agree, compared to 46 percent born to
lesbian couples and 65 percent born to married heterosexual parents.
Regarding family transitions, the single mothers by choice appear to
have a higher number of transitions, although if the single mother married
or moved in with someone, that would count as at least one transition.
Still, with about half (49 percent) of the ofspring of single mothers by
choice in our sample reporting one or more family transitions between
their birth and age 16, its clear that family change was not uncommon for
them. See Figure 3b. (p. 116)
Donor of fspri ng
born to si ngle mothers:
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11
Regarding troubling outcomes, even with controls, the ofspring
of single mothers who used a sperm donor to conceive are almost 2.5
times as likely as those raised by biological parents to report problems
with the law before age 25. Similarly, even with controls, the ofspring of
single mothers who used a sperm donor to conceive are more than 2.5
times as likely as those raise by biological parents to report struggling
with substance abuse. See Figure 2. (p. 115)
Meanwhile, compared to those born to single mothers or heterosexual
couples, those born to lesbian couples seem overall to be somewhat less
curious about their absent biological father, and somewhat less likely to
report that they are hurting. However, substantial minorities of those born
to lesbian couples still do report distressing experiences and outcomes, for
example agreeing that the circumstances of their conception bother them,
that it makes them sad to see friends with biological fathers and mothers,
and that it bothers them that money was exchanged in their conception.
Nearly half (46 percent) of the donor ofspring born to lesbian couples
in our study agree their sperm donor is half of who they are, and more
than half (59 percent) say they sometimes wonder if their sperm donors
family would want to know them. Finally, more than one-third of donor
ofspring born to lesbian couples in our study agree it is wrong deliberately
to conceive a fatherless child. See Table 2. (p. 109)
Regarding family transitions, the donor conceived born to lesbian
mothers appear only slightly less likely to have had one or more family
transitions before age 16, compared to the donor conceived born to het-
erosexual married parents. See Figure 3b. (p. 116)
Regarding troubling outcomes, even with controls, the ofspring of
lesbian couples who used a sperm donor to conceive appear more than
twice as likely as those raised by their biological parents to report strug-
gling with substance abuse. See Figure 2. (p. 115)
Donor ofspring broadly afrm a right to know the truth about 8.
their origins.
Depending on which question is asked, approximately two-thirds of
grown donor ofspring support the right of ofspring to have non-identifying
information about the sperm donor biological father, to know his identity,
Donor of fspri ng
born to lesbi an couples:
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12
to have the opportunity to form some kind of relationship with him, to
know about the existence and number of half-siblings conceived with
the same donor, to know the identity of half-siblings conceived with the
same donor, and to have the opportunity as children to form some kind
of relationship with half-siblings conceived with the same donor.
In recent years Britain, Sweden, Norway, the Netherlands, Switzer-
land, and some parts of Australia
,
and New Zealand have banned anony-
mous donation of sperm and eggs. Croatia has recently considered such
a law. In Canada, a class-action suit has been launched seeking a similar
outcome. Tis study afrms that a majority of donor ofspring support
such legal reforms.
About half of donor ofspring have concerns about or serious 9.
objections to donor conception itself, even when parents tell
the children the truth about their origins.
Of the donor conceived adults we studied, a sizeable portion 44
percent are fairly sanguine about donor conception itself, so long as
parents tell their children the truth. But another sizeable portion 36
percent still have concerns about donor conception even if parents
tell the truth. And a noticeable minority 11 percent say that donor
conception is hard for the kids even if the parents handle it well. Tus
about half of donor ofspring about 47 percent have concerns about
or serious objections to donor conception itself, even when parents tell
their children the truth.
Openness alone does not appear to resolve the complex risks that 10.
are associated with being conceived through sperm donation.
In our study, those donor ofspring whose parents kept their origins
a secret (leaving the donor ofspring to fnd out the truth in an accidental
or unplanned way) were substantially more likely to report depression or
other mental health issues (51 percent), having struggled with substance
abuse (36 percent) or having had problems with the law (29 percent).
Tese diferences are very large and striking. See Table 4 (p. 112)
Still, while they fared beter than those whose parents tried to keep
it a secret, those donor ofspring who say their parents were always open
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13
with them about their origins (which are 304 of the donor ofspring in our
study) still exhibit an elevated risk of negative outcomes. Compared to
those raised by their biological parents, the donor ofspring whose parents
were always open with them are signifcantly more likely to have struggled
with substance abuse issues (18 percent, compared to 11 percent raised by
their biological parents) and to report problems with the law (20 percent,
compared to 11 percent raised by their biological parents).
While a majority of donor ofspring support a right to know 11.
the truth about their origins, signifcant majorities also sup-
port, at least in the abstract, a strikingly libertarian approach
to reproductive technologies in general.
Well over half (61 percent) of donor ofspring say they favor the
practice of donor conception (compared to 39 percent of adopted adults
and 38 percent raised by their biological parents).
Te majority of donor ofspring about three-quarters agree, I
think every person has a right to a child; Artifcial reproductive technolo-
gies are good for children because the children are wanted; Our society
should encourage people to donate their sperm or eggs to other people
who want them; and Health insurance plans and government policies
should make it easier for people to have babies with donated sperm or
eggs. Tese numbers are substantially higher than those from adoptive
or biological parent families who agree with the same statements. More-
over, in a particularly startling fnding, a majority of donor ofspring (64
percent) agree, Reproductive cloning should be ofered to people who
dont have any other way to have a baby, compared to 24 percent who are
adopted and 24 percent raised by their biological parents.
Adults conceived through sperm donation are far more likely 12.
than others to become sperm or egg donors or surrogates
themselves.
In another startling fnding, a full 20 percent of donor ofspring in
our study said that, as adults, they themselves had already donated their own
sperm or eggs or been a surrogate mother. Tats compared to 0 percent
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14
of the adopted adults and just 1 percent of those raised by their biological
parents an extraordinary diference.
Tose donor ofspring who do not support the practice of donor 13.
conception are more than three times as likely to say they do
not feel they can express their views in public.
We asked donor ofspring whether they favor, oppose, or neither
favor nor oppose the practice of donor conception. Of those who favor
donor conception, just 14 percent say they do not feel they can express their
positive views about donor conception in society at large. By contrast,
of those who oppose it, 46 percent said they do not feel they can express
these negative views about donor conception in society at large.
More than one-third of donor ofspring in the study (37 percent),
compared to 19 percent of adopted adults and 25 percent raised by their
biological parents, agree, If I had a friend who wanted to use a sperm
donor to have a baby, I would encourage her not to do it.
Donor conception is not just like adoption. 14.
Adoption is a good, vital, and positive institution that fnds parents
for children who need families. Tere are some similarities between donor
conception and adoption, but our study reveals there are also many difer-
ences. And, if anything, the similarities between the struggles that adopted
people and donor conceived people might share should prompt caution
about intentionally denying children the possibility of growing up with
their biological father or mother, as happens in donor conception.
Todays grown donor ofspring present a striking portrait of 15.
racial, ethnic, and religious diversity.
A full one-ffh 20 percent of the donor ofspring in our sample
said they are Hispanic, compared to just six percent of those from adop-
tive families and seven percent of those raised by biological parents. Te
donor ofspring are also well represented among races in general. Many
of them grew up with Catholic, Protestant, or Jewish religious identities
and/or identify with those traditions today. Tis striking diversity helps
to illustrate the complexity of their experience and the reality of their
presence in every facet of American life today.
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15
Not so long ago, a couple in the U.S. who was unable to get
pregnant and who had reason to think the husband was infertile
might appeal to their doctor for help. If their doctor was the
sort who made it his business to help such couples, he might
know of some medical students at a nearby university willing
to donate sperm, or, ofen enough, he might quietly provide his
own. Afer the insemination, the woman went home instructed
to have intercourse with her husband, pretend any resulting baby
was entirely theirs, and never speak of that doctor visit again.
Tese days of relying only upon locally produced sperm are long
gone. Today, anyone wishing to have a baby and needing sperm, eggs, or a
womb has a dizzying array of options. Tey can include donor eggs, donor
sperm, using a traditional or gestational surrogate, embryo donation, or
some combination of these. Te sperm, eggs, or wombs they procure can
come from many diferent parts of the world. Tey might still choose a
donor or surrogate who happens to live near them. But more ofen they are
likely to go further afeld, and sometimes much further afeld. Most sperm
used in Canada comes from the United States. Most sperm donated in
Denmark goes to clinics around the world. Women in nations like Britain,
which now restricts the anonymity of donors, ofen go to Spain, Eastern
Europe, or Russia to procure the eggs they need to get pregnant.
Would-be parents around the world participate in fertility tour-
ism, going to other nations to get pregnant and secreting their unborn
babies back home with no one the wiser about their origins. A clinic in
California says it can barely keep up with the demand from patients
from France, Spain, Australia, and elsewhere who seek to take advantage
of the lax regulations they fnd in California.
1
Some nations, such as India
and South Africa, purposefully market their high quality, low cost fertility
services and beautiful beaches to couples from Western nations who are
urged to come, relax, receive fertility treatments, and go home pregnant,
all for a much lower cost than even one clinic visit back home. India is
now the destination of choice for couples seeking a low-cost surrogate
mother. Straight and gay couples from the U.S., Canada, Europe, Israel,
IN
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and elsewhere can combine eggs and sperm (their own or someone elses)
and have the resulting embryo carried by a village woman in India for a
fraction of the cost of, say, an American surrogate, and with no risks of
emotional entanglements as a huge added bonus.
Today, women in the U.S. shop for sperm donors in online catalogs
in much the same way they might shop for a date through a matchmaking
service or in much the same way they might buy a piece of furniture or
a car. Potential mothers can compare donors heights and weights, ethnic
background and physical traits, educational and professional accomplish-
ments, and even view his baby pictures and listen to an audio tape of him
expounding on the meaning of life and why sperm donation appealed to
him. If its an egg they need, the same women can show their sometimes
reluctant husbands reams of glamour shots of gorgeous young women with
improbably impressive educational scores and athletic accomplishments,
even assuring their husband, if necessary, that the mystery womans DNA
is preferable to his wifes.
Beneath all this pulsing commerce, with dollars and Euros fying
around the world, bringing forth babies deposited on doorsteps like the
stork of old, for some a major sore point is this: most of it is done in secret.
While newly adoptive parents of children from abroad are now strongly
counseled to incorporate aspects of their childs home culture into their
family life, parents who get their sperm or eggs elsewhere whether from
a stranger in the same city or someone halfway around the world quite
ofen do not tell the children that their biological mother or father is any-
one other than the parent raising them. A growing proportion of todays
babies are global citizens in ways previous generations never dreamed,
yet they wont even know the truth unless someone spills the beans.
Even the childs pediatrician may not be told the truth as the parents
simply, and grossly inaccurately, report their own family medical histories
as the childs.
Gay and lesbian couples and single persons who use such technolo-
gies do tend to be more open with their children and with other important
players, including the childrens doctors. (For one thing, the obvious
absence of either a father or a mother raises the question of where the
child came from.) Tey might also be more likely to acknowledge and
SER 315
17
even celebrate what they know of the childs varied ancestry. But in these
families, too, the children are almost never encouraged to acknowledge that
the biological father or mother far afeld actually is their father or mother.
For most gays, lesbians, and singles, and for the relatively small propor-
tion of heterosexual couples who are open with their donor-conceived
children, these far away donors are instead the seed providers, or the
nice woman who gave me what I needed to have you, or the Y Guy,
or any number of other cutesy phrases intended mainly to communicate
that despite the fact that one-half of the childs physical being came from
this source, this person should nevertheless be of very litle importance,
if any, to the child.
In the U.S. today we have some idea how many children are con-
ceived through egg donation (about 6,000 babies in 2005
2
), but while
the U.S. Centers for Disease Control and Prevention requires clinics to
report pregnancies achieved through egg and embryo transfers, it does
not require them to report those resulting from sperm donation. Experts
estimate that perhaps 30,000 to 60,000 children are conceived in the United
States annually through sperm donation, and that currently about one
million Americans were conceived this way, but these are litle more than
educated guesses. Te global picture is even more uncertain. Te fertility
industry is increasingly a cross-border phenomenon. No one knows how
many children are being conceived in one country and born in another.
In the United States, the frst documented case of donor insemina-
tion occurred in Philadelphia in the 1880s, when a physician artifcially
inseminated an unconscious female patient, leaving her to think that her
pregnancy was the result of intercourse with her husband.
3
It seems all too
appropriate that the frst case was veiled in such steep secrecy the truth
hidden even from the mother because that is how the practice has been
treated for most of its history since. Donor conceived persons typically
have not known their status. Teir parents were encouraged to keep it a
secret from the child, so they only knew the truth when someone their
mother or the man they thought was their father, or their grandmother
or a family friend spilled the beans, ofen in the midst of family confict,
or divorce, or afer their social fathers death. (Social father is a way of
referring to a man who functions as a childs father but is not the biologi-
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18
cal father.) Te small minority who did learn that they had a sperm donor
biological father had litle if any hope of fnding him, since records, if they
were kept, were ofen eventually lost or destroyed. Generations of donor
conceived persons have searched, usually in vain, through photographs
in the year books of medical schools near the doctors ofce where their
mother was inseminated, looking for a man who shares their nose or eyes
or hair, a man who might be their father.
Today, with increasing openness about alternative families and with
the power of the internet to bring people together, that secrecy is beginning
to lif somewhat. On the one hand, many parents still keep the fact their
child is donor conceived a secret from the child. For example, in surveys
most women who use donor eggs do not plan to tell their child the truth.
(Egg donation itself has only been possible since about 1985.) On the other
hand, the types of families now increasingly likely to use donor sperm
tend to be at least somewhat more open about it. As treatments for male
infertility have improved to the extent that few heterosexual couples will
need to use donor sperm, the bulk of the sperm bank business in the U.S.
and abroad is increasingly being taken up by single women and lesbian
couples, women who generally are not medically infertile but who either
do not currently have a suitable partner or do not wish to have sexual
relations with a man in order to have a child.
Yet there are new tensions today. While single and lesbian women
tend to be more open with their children about having used a sperm
donor (whether or not they acknowledge him to be the childs biological
father), they are also more likely to get the sperm from increasingly far
fung locales, from across the country and even around the world.
4
For
todays donor conceived children, born in an era of big business sperm
banking, fipping forlornly through yearbooks at the medical school next
to the hospital where they were born is unlikely to yield much information
about who their father is.
Many do not realize that, at this point, conceiving a baby with do-
nor sperm is an old-fashioned technology. Donor conception frst hit the
headlines in the middle of the last century. Producer Barry Stevens, in his
flms Ofspring and Bio-Dad, documents the explosion of popular interest
in England in the mid-1950s, when it came to light that certain doctors
SER 317
19
were acquiring sperm, inseminating women, and producing unknown
numbers of babies. A furry of medical journal articles, both pro and con,
appeared. Te church denounced it. Eerie flm footage was produced,
showing a few nurses grappling with scores of wriggling infants who looked
like they had just come of an assembly line. A popular movie released
in 1959, starring American singer Julie London, was titled A Question of
Adultery. Two years later, Simon and Schuster published a novel, called
Seed of Doubt, which touted itself as the explosive, shocking novel about
artifcial insemination.
5
Today, artifcial insemination has gone mainstream, and yet most
people are still as ignorant of its efects and implications as were people
ffy years ago. As a society, we barely studied the children and never asked
how they fared when they grew up. We never asked what would happen to
broader social atitudes about fatherhood and motherhood if donor con-
ception became just another way of making a baby. Today, were grappling
with a decades-old technology that were only beginning to understand,
a technology coming of age in the context of world-sweeping changes
in law, medicine, and culture.
6
Tese changes are increasingly defning
parenthood, frst and foremost, around adult rights to children.
7
We designed this survey instrument to learn more about the identity,
kinship, well-being, and social justice experiences of donor conceived
adults. Te survey research frm Abt SRBI of New York City felded our
survey through Survey Sampling International (SSI). SSI used a web-based
panel that includes more than a million households across the United
States.
8
Trough this method we were able to assemble a representative
sample of 485 adults between the ages of 18 and 45 years old who said
they were donor conceived.
9
Trough the same method we assembled
and surveyed a comparison group of 562 similar-aged persons who were
adopted as infants, and a group of 563 people of the same age who were
10

Te study is notable for several reasons. Te frst is the unpre-
cedented, large sample. Te second is our ability to compare the experi-
ence of donor conceived persons with that of people who were not donor
conceived both those who were adopted and those who were raised
by their biological parents. What is especially notable, however, is that
SER 318
20
the study employs a representative sample drawn from over one million
households. Tese donor conceived adults were simply among a million-
plus American households that had signed up to receive web surveys on,
well, anything, and who are mostly targeted by marketers. Tey were not
people who responded to an advertisement about a study or who were
found through an activist online message board people who, critics could
argue, might have an axe to grind on this topic. Nor were they the young
children of parents who agreed to talk about their children, a methodol-
ogy that has merit but does not really allow donor ofspring to speak for
themselves. While like all studies our survey method has its limitations
11
,
and like any single study it is not defnitive, it does present for the frst
time, for the world to see, profound insights into the lives and feelings of
donor conceived adults.
Te title of this report is drawn from a t-shirt and bib marketed for
parents to purchase for their sperm donor-conceived children. Around
the web, one can fnd pictures of young children wearing items that read,
My Daddys Name is Donor. Te designer has said that 99 percent of
adults think its a riot.
12
We wonder what the children wearing the t-shirt
might feel as they grow up. What do todays young people conceived with
donor sperm think about their experiences? Tis report is our atempt to
respond, as best as we can, to that question.
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21
Why might a child like McKay make a Daddy Box? If McKay
could articulate his feelings, he might say something like this
to his donor/dad: I want to share who I am with you, because
you are half of me. Te majority of donor conceived adults in
our survey a full 65 percent agree that My sperm donor
is half of who I am.
14
Donor conceived persons articulate this thought over and over. A
young woman in Pennsylvania says she wants to meet her donor because
she wants to know what half of me is, where half of me comes from.
15

Another in Britain says, I want to meet the donor because I want to know
the other half of where Im from.
16
Lindsay Greenawalt in Ohio is seeking
any information she can fnd about her sperm donor. She says, I feel my
right to know who I am and where I come from has been taken away from
me.
17
Olivia Praten, a Canadian donor ofspring who recently launched a
class-action law suit in British Columbia, has said in interviews: I think of
myself as a puzzle; the only picture I have ever known is half-complete.
18

She clarifes: Im not looking for a dad. Rather, I have questions about
who I am and why I do what I do.
19
Danielle Heath of Australia found out when she was 19 years old
that she was donor conceived. She refected: I felt like there was a piece
missing. It would complete me to know who I am like.
20
Tom Ellis of
Britain told a reporter how he felt afer submiting a cheek swab with
his DNA to the UK Donor Link registry: It was a huge decision for me
to make because it meant admiting that the stranger who helped bring
me into the world and who may never want to meet or know me is
important to me. But he is a part of me and without him, I will never feel
completely whole.
21
Even mothers who use a sperm donor to get pregnant wonder about
this issue. One mother of a nine year old son conceived through donor
insemination told US News and World Report, Every time I look at him
I cant help but wonder who else he is.
22

Many donor conceived adults worry about the consequences of
trying to fulfll these longings. More than half (53 percent) agree that
THE DADDY BOX

A few months ago, Simone Braquet,
41, of Sugar Land, Texas, and Tim
Gullicksen, 41, of San Francisco, found
each other on the Internet. Braquet was
searching for the sperm donor whod
allowed her to become a single mom 10
years earlier. Gullicksen, an anonymous
donor intrigued by his own family tree,
was looking for his kids. First there
were e-mails and phone calls. Then,
in March, Gullicksen flew to Texas
to meet Braquet and the child they
created: a boy with bluish-green eyes
and sandy brown hair named McKay.
When Braquet told her son that she
had tracked down his donor dad, he
lit up, she says, then burst into tears.
For years, McKay had kept a Daddy
Box under his bed filled with special
handmade itemsa painted rock,
an angel ornament with his photo in
it. Finally, just weeks before his 10th
birthday, he had someone to give it to.
Ive always wanted a dad, he says.
Newsweek, June 2008
13
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22
I have worried that if I try to get more information about or have
a relationship with my sperm donor, my mother and/or the father
who raised me would feel angry or hurt.
Others express discomfort with their origins. Forty-fve percent
agree that Te circumstances of my conception bother me. When
we asked how ofen they think about donor conception, more than one-
quarter of those in our survey say they do so at least once or more a day,
and almost half say they think about donor conception at least a few times
a week or more ofen.
Some donor ofspring feel isolated and disturbingly unusual,
conceived in a way that is just, well, not normal, and not understood by
anyone around them. British donor ofspring Christine Whipp tells of
fnding out, at age 41, afer a lifetime of painful emotional tumult and
powerful feelings of being rejected by her mother, that her mother had
used a sperm donor to get pregnant with her:
My ancestral home was a glass sample jar, and my [biological]
parents never knew one another in either the personal or the bibli-
cal sense. I couldnt name a single person who shared this strange,
science-fction style background, and found myself feeling more
alone and completely separate from the rest of the human race than
I had ever felt before.
23

When Adam Rose found out the truth about his origins, he says, I
felt like a freak, because no one else in my perception had been conceived
in that way and it was something that nobody had heard of. It was very
shocking.
24
Another donor ofspring reports she has long struggled with
feelings of shame for being conceived in such an unusual way.
Katrina Clark, then barely twenty years old, told her own story in
a Washington Post essay. She was born to a single mother who was always
open with Katrina about the facts of her conception. She had a close,
loving relationship with her mother. Still, as she got older and began to
wrestle with identity issues, she looked around at friends who had both
their parents. Tat was when the emptiness came over me. I realized that
I am, in a sense, a freak. I really, truly would never have a dad. I fnally
understood what it meant to be donor-conceived, and I hated it.
25

Lindsay Greenawalts mother, who had her as a single mom, also
informed her about the truth of her origins. At the same time, Lindsay
SER 321
23
recalls, her mother never really raised the subject again or encouraged
discussion about it. As a teenager, Lindsay writes, she came to feel that:
Te worst part of this was that I became very shameful of how I
was conceived and wished that I was normal in the sense that I
came to be from sex rather than a procedure in a doctors ofce.
Te thought of being conceived from a one night stand was more
appealing than being conceived by DI [donor insemination]. My
mother never met my father, never talked to him, let alone shared
an intimate relationship of any kind with him! Tis lack of contact is
simply unnatural. Even though I had never been really told anything
about DI or that there are many other children born of this each
year, I acquired these beliefs early on. I also unfortunately thought
of myself as a freak of nature until I was 18 years old.
26

Twenty-three-year old Alana
27
reports what happened the frst time
she tried to confde in a friend: In junior high I told my best friend about
my conception, she said. Ten we had a fght. She told the entire school
that I was a test tube baby, essentially a freak of science. She adds, I
would like more Donor Kid stories to be publicized and shared without
the freak connotation.
We asked donor conceived persons the questions At age 15, what
feelings best describe how you felt about being donor conceived? and
At the age you are now, how do you feel about being a donor conceived
person? (Te frst question was asked only of those who knew at age 15
that they were donor conceived.) Each question ofered a list of positive,
negative, and neutral terms; respondents could select as many as they
wished. At age 15, ten percent chose the powerfully negative term freak of
nature and 13 percent chose the equally disturbing phrase lab experiment.
Te fact that money was involved in their conception seems espe-
cially to disturb some donor ofspring. In our survey, 45 percent agree
that It bothers me that money was exchanged in order to conceive
me. Christine Whipp writes: My existence owed almost nothing to
the serendipitous nature of normal human reproduction, where babies
are the natural progression of mutually fulflling adult relationships, but
rather represented a verbal contract, a fnancial transaction and a cold,
clinical harnessing of medical technology.
28
She continues, Te routine
manipulation of human gametes has allowed the very essence of life to
SER 322
24
be exploited, commercialized, demeaned and debased. Te previously
unseen human embryo is now a collectable, valuable resource.
29

Lindsay Greenawalt concurs: Children are being created without
any thought that a human being is involved in this. It is simply a business
transaction between our parents, the doctor, and the anonymous donor,
with no regard to the child. She goes on:
It is not simply a donation that these generous men have taken the
time to give. Not only are they being paid for this so-called donation,
which seems to me to be an oxymoron in the frst place. [T]his is
not just any blood donation or organ donation; these men who donate
sperm (and women who donate ova) are producing children which will,
before theyre even conceived, be denied the right to know who they are.
Stina, a 29 year old law student in Cologne, Germany, says that
shes sometimes reluctant to share the truth about her origins with new
acquaintances. She is always a bit afraid that my person will be regarded
as stained because of my conception, as my parents had to pay my genetic
father, an alien person to them, for creating me.
For some donor ofspring, their deep discomfort about their
origins appears to lie, at least in part, in their feeling of being a product
made to suit their parents wishes of being made, not born.
Lynne Spencer is a nurse and donor conceived adult who interviewed
eight other adult donor ofspring for a masters thesis.
30
She writes of
fnding out, as an adult, that her married parents had conceived her with
donor sperm. Te profound question with which she struggled was this:
If my life is for other peoples purposes, and not my own, then what is the
purpose of my life?
31
In a later exchange she expanded on this thought:
I think one of the most unusual aspects of being a donor ofspring
is the feeling of being inanimate, or that I didnt exist in part. Te
whole sense that I dont mater, who I am doesnt mater and needs
to be repressed. Its only what I represent that matersthat I am
someones child, but Im not a person in my own right.
Another participant in Lynne Spencers study said this:
I had always been very scared of dying, because I couldnt really
come to terms with my nonexistence in the world. I think part of that
was to do with the fact that in some sense I didnt feel like I existed
in the world, because I didnt know where half of me originated
from. It was almost like that part of me had been seriously denied
SER 323
25
because of the secrecy. Nobody had spoken about it for me. [I]
ts almost like I had come into the world by magic.
32

Several years ago, a then-39 year old Japanese woman whose mother
used donor insemination to conceive her told a reporter that she struggles
with this overwhelming feeling: I feel that I came into this world for the
sake of my mother. Afer she died, I started wondering if I had a reason
to exist anymore.
33
Christine Whipp reports that she has long felt that having
bought and paid for memy mother view[ed] me more as her personal
property [rather] than seeing my existence as a serendipitous piece of
good fortune.
Some donor ofspring, even those who have been told the truth
about their origins, nevertheless struggle with wild uncertainties about
where they came from. One teenage girl, a 17-year-old daughter of a lesbian
couple, wrote to an advice columnist
34
:
I am a 17-year-old daughter of a lesbian couple. I dont know
my father, his name, heritage, or anything. I can only remember one
time the topic of my father really came up in conversation. I was
eight years old and I denied any interest in knowing about him. I
was worried that my parents would think that I am ungrateful for all
that they have done for me or that they would get the misconcep-
tion that I thought they screwed me up.
So my father has never been discussed. As a kid, I fgured I was
a test tube baby (as if I understood what it meant), but now I have
no clue. Tis induces a swell of paranoia about why is this such a
big secret. For a while I was even considering the possibility that
my Mom may have been raped.
I thought about asking my older siblings who were teenagers
when I was born, or asking one of my aunts, but I dont want to
drag them into this. Besides, I am not sure if they could or would
give me the information I seek. Maybe my family thinks as I
do that the silence has been around so long that it is just easier
to avoid talking about it.
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SER 325
27
Joanna Rose is a donor conceived adult born in the U.K. and
now living in Australia, where she recently completed a Ph.D.
dissertation on the ethics, kinship, and identity issues raised
by donor conception. She launched and won the High Court
case that led to a ban on anonymous sperm and egg donation in
Britain. Born afer her mother conceived her with anonymous
donor sperm, she was raised with her mother, social father, and
full or half brother (they may have diferent donor fathers). Jo-
anna learned the truth of her origins when she was about seven
or eight years old, afer fnding her father upset and pressing
him to fnd out what was wrong. She feels that the secret her
parents had tried to keep and the fact that her mother had
biological connections to both children, while her father did
not were huge strains on her parents marriage. Her parents
separated when she was about ten years old.
For Joanna, one painful irony is that despite her striking success at
the national level she still does not know who her own biological father
is. She was given a tip that he might be a certain doctor. But afer writ-
ing to him twice, seeking information on her medical history and ethnic
background, and hoping for any sense of closure he might be able to give
her, all she has received from him are legal threats and disregard. If he
is her father she feels doubly abandoned by him, the frst time when he
walked away from a child he conceived when he gave away his sperm,
and the second time when he rejected her when she was grown. She still
would like to know whatever she can about her biological father, whoever
he may be. Anything is beter, she says, than the paternal oblivion I am
lef with now.
Joanna is a founding member of the group Tangled Webs, which
calls itself an action group challenging Donor Conception practices in
the U.K., Australia, and internationally. Tey seek to provide an alterna-
TANGLED WEBS
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28
tive voice to ARTs through greater recognition of the complex, lifelong
issues that afect the person created through Donor Conception. Tangled
Webs is their term for the intergenerational consequences moral,
social, and legal to which donor conception gives rise. When it comes
to those intergenerational consequences, our study is revealing.
In our study, the majority of donor conceived adults express longings
to know more about their sperm donor biological father and his family.
Well over two-thirds of adult donor ofspring a full 70 percent agree
that I fnd myself wondering what my sperm donors family is like.
Similarly, 69 percent agree that I sometimes wonder if my sperm do-
nors parents would want to know me.
Donor ofspring express signifcant pain over the loss of their bio-
logical father, signifcantly more even when compared to those who are
adopted. In a striking diference, nearly half of the donor ofspring (48
percent) compared to about a ffh of adopted adults (19 percent), agree
that When I see friends with their biological fathers and mothers,
it makes me feel sad.
35
Similarly, more than half of the donor ofspring
(53 percent, compared to 29 percent of the adopted adults), agree that It
hurts when I hear other people talk about their genealogical back-
ground.
36
Both groups the donor conceived and the adopted may
not know about and did not grow up with one or both biological parents
and those parents families, but the donor ofspring overall express a great
deal more pain, sadness, and confusion about this loss.
Te theme of looking for my father everywhere is a recurring one
among donor ofspring. Some have been told a few details about their
biological father maybe his height and the color of his hair and eyes.
Tey say these few, shadowy details are ofen on their minds when theyre
out in public, walking down the street, riding a bus, scanning a crowd.
Could that be him? they ask themselves. In our survey, 58 percent agree
that When I see someone who resembles me I ofen wonder if we are
related. (45 percent of adopted adults and 14 percent of those raised by
their biological parents agree as well.)
37
Te New York Times interviewed two teenage donor ofspring
who had just discovered that they are half-siblings. One thing the two
Loss of Biological
Father and Hi s Fami ly
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29
girls quickly realized was that they had both, all their lives, been
looking for the same man in a crowd:
Danielle and JoEllen realized that they both run through
the brief criteria they know about their sperm donor he
is 6 feet tall, 163 pounds with blond hair and blue eyes
when they see male strangers. Itll always run through my
mind whether he meets the criteria to be my dad or not,
said JoEllen, of Russel, Pa. She said the same thing hap-
pens to her.
38

Donor ofspring speak of the anxiety they feel as they scan
all those anonymous faces. Narelle Grech of Australia wrote,
How would you feel knowing that you could be walking past
your own father or any seven of your own [half ] brothers or
sisters, and not know it?
39
Olivia Praten of Canada says: I cant
help it. Its always on my mind. Do I see him on the bus? Is he
my professor?
40
In our survey, one donor conceived adult wrote
simply this: Sometimes I wonder if my father is standing right in
font of me.
For some observers, an answer to the concerns of donor
ofspring is found in online registries. Te same internet tech-
nology that fuels a global trade in sperm and eggs is also being
employed to try and knit together at least some of the fragments
of biological families that are now scatered around the U.S. and
the globe. A growing number of web-based registries in the U.S.
and other nations can be used by donor conceived ofspring, or
their parents, to try to locate other half-siblings conceived with
the same donor and even, sometimes, to fnd their sperm donor
biological father or egg donor biological mother. But they are
voluntary. An ofspring is only going to fnd someone on them if
he or she has heard about the same registry and signed up, wishing
to be found. It does happen, and half-siblings are found a litle
more ofen, but for most donor conceived persons, fnding their
sperm donor dad is still a very long shot.
Te most well-known registry in the U.S. is the Donor
Sibling Registry, founded by a dynamic leader named Wendy
Regi stries
SER 328
30
Kramer. Kramer used donor insemination to conceive her now-grown
son, Ryan, and was frst motivated to turn to the internet to try and fnd
his sperm donor father and half-siblings when he expressed a strong desire
to know more about where he came from. Before long she had launched
a service that has made more than 6,000 matches between half-siblings,
or between children and their biological parents. (Te number is always
rising and will likely be still higher by the time this report appears.)
41

Wendy and Ryan Kramer and the Donor Sibling Registry are rou-
tinely featured in the major media and have drawn a lot of sorely-needed
atention to the needs of donor conceived children and adults to know
where they come from. Kramer is now an active leader in eforts to urge
the U.S. sperm and egg bank industry to begin ofering an industry-backed
registry service. (She wants the registry to be mandatory; the industry
wants it to be voluntary.)
Tere are other registries too. A sampling includes the sibling registry
service of California, Cryobank, a voluntary program where clients can
register the birth of their children and then contact potential siblings.
42

Te group Single Mothers By Choice founded a sibling registry afer
several mothers in our organization coincidentally learned that they had
used the same [sperm] donor and that their children were half-siblings.
43

In Britain, UK Donor Link is a pilot program funded by the Department of
Health with a mandate to encourage more donors, donor conceived adults
and their genetically related half-siblings to register with them and have
the chance to make contact with each other.
44
A similar government-run
service was started in New Zealand in 2005. A donor conceived woman in
Germany is seeking to establish a registry there. As demand grows, more
registries are likely to appear.
But if you are a typical donor conceived person in the U.S. mean-
ing your parents used an anonymous donor it is quite unlikely you will
fnd your biological father through a registry. First, the man chose to be
an anonymous donor, not a known donor, which means that at the time
he donated he probably did not want to be found. (Although its true that
many sperm donors might not have known about the possibility of being,
or would not have had the option to be, a known donor.) Tere is a chance
that the donors views have evolved since that time and that hes now curi-
ous to know about the children that he might have fathered. If so, he has
SER 329
31
to know that registries exist. Ten he has to sign up on one. Its helpful if
he enters the correct donor number he was given by the clinic when he
donated. At the same time, you, the donor ofspring, or your mother, have
to sign up on the same registry. Its helpful if you or your mother can also
enter the correct donor number. Its also helpful if the clinic kept decent
records and managed to give the same donor number information both
to your mother and the donor. Finally, if a match is made, you have to
hope your sperm donor father hasnt already been connected with, say,
a dozen or more other ofspring and has started to feel overwhelmed by
all these DNA tests and emotional emails and meetings. Going back to
square one, whats far more likely than this scenario is that, instead, the
young man who donated sperm when he was in college or medical school,
the cash from which he used to pay for groceries that month or buy books
for next term, hasnt given much thought to whether children resulted. He
fnished school, got a job, met someone, married, and had (more) kids.
Even if he does speculate with curiosity about those donations from long
ago he probably doesnt want to sign up on the internet and risk some
kid asking him for money (which is not what donor ofspring do, but
men fear it anyway), or geting his wife upset, or geting tangled up in
the family business of people he doesnt even know. Most likely, if youre
a donor ofspring hoping to fnd your biological father on a registry, that
distant realm of kinda-curious-but-not-gonna-do-anything-about-it is
the land that he inhabits.
For most donor conceived children today, and for the vast majority
now grown, the Daddy Box they keep under their bed will continue to
be flled with mementos and memories they sometimes desperately want
to share with a father they will never ever know.
Some families have a lot of kids, and some men father children
with several diferent women. For these reasons, people who have been
adopted or whose fathers have abandoned their families might well have
legitimate concerns that they have full or half siblings, somewhere out
there, whom they do not know. But they could still be almost certain that
they might have, at the most, perhaps a dozen unknown siblings, but most
likely far fewer than that.
Extreme Fami l ies
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32
Today, with the advent of big business sperm banking, one man can
donate his sperm many times and potentially conceive many, many
children. Since a lot of women seem to have a certain type of donor father
in mind (tall, blue-eyed, blonde; smart, sensitive, athletic), sperm banks
typically have some high demand donors that women choose over and
over, eager to make him the biological father of their child. His samples are
divided into vials and sold to women all over the country. When would-
be mothers fnd to their dismay that his sperm is gone, they sometimes
post queries on message boards read by other donor insemination moms,
seeking any unused vials that can be bought on the open market. Wendy
Kramer reports that on the Donor Sibling Registry at least one sperm
donor is confrmed to have more than 100 children, and reports of one
donor fathering dozens or even over a hundred ofspring are widespread
in the U.S. and abroad.
All of which means that, today, donor ofspring not only grapple
with the loss of their biological father and his whole family; that is, with
the loss of an entire half of their heritage. Tey also struggle with the
astounding implications of what happens when reproduction is fully
disconnected from sex, when social mores that seek, as much as possible,
to restrict men to reproducing with one, or at least not more than a few,
women are thrown out and anything goes. When young people today
discover that they are conceived with a sperm donor, sooner or later they
begin to struggle with the dawning awareness that they might well have
a half-dozen, or a dozen, or scores, or hundreds, of half-siblings all over
the place. Teir brothers and sisters might live on the other side of the
country or the other side of the world. Tey might live in the same town.
Tey might live next door. Tey have no idea.
Joanna Rose learned that the British sperm bank from which she
was likely conceived had a small number of donors who gave their samples
untold numbers of times. Te doctor who ran the small clinic later estimated
that each man could have between 100 and 300 ofspring.
45
Asked how
she felt when she found that out, Joanna replied: Dizzy. Just dizzy with
just dizzy in so many ways, like [how] could they do that to me, that
there could be that lack of thought, that they could be so reckless.
46
Nearly all donor ofspring are lef with guesswork and back-of-the-
SER 331
33
envelope calculations as they try to fgure out how many brothers or sisters
they have. At a Canadian conference in 2005, two donor ofspring shared
their thinking. Shelley Kreutz told the group: We did the math: if half
the time a pregnancy results, donating once a week for 5 years, thats the
possibility of 235 births, assuming half the time it worked. Olivia Praten
added: It could be less and it could be more, but thats an example. Right
now, the system can operate without being accountable to anyone.
47

Te result is that donor ofspring are lef to grieve losses they
cannot even fully grasp or imagine. As Narelle Grech put it: I always
wanted a brother, and last year I found out I have three! I cried the day I
found out, because I was so happy and I also cried because the reality is I
may never get to meet or know any of them. Its like they were born and
died in my mind all at once.
48

She later learned that she has seven half-siblings. She writes: Te
clinics and the professor who helped in my creation and mums treatment
deliberately legislated so that I could never know any of them. How
is this fair? None of us kids agreed to this anonymity business and if I
could meet all seven of them I would. It would mean the world to me.
49
Tese stories of grief and anger stand in marked contrast to the domi-
nant media presentation of what one mom who used donor insemination
calls extreme families. If youve read anything at all in the newspaper
about donor ofspring, most likely it was one of a spate of news stories
about moms who used the same sperm donor geting their babies, tod-
dlers, and tweens together for picnics at which the kids play, the moms
snap lots of pictures, and reporters descend for fascinating human inter-
est stories about todays diverse families. Lots of tumbling toddlers who
vaguely resemble one another, smiling broadly for the camera, makes a
great story for the newspaper, but it doesnt begin to describe the realities
these children face as they grow up.
In fact, a not insignifcant number of donor ofspring are profoundly
confused about something the rest of us think is prety simple: who their
families are. In our survey, 43 percent of donor ofspring, compared to
only 15 percent of adopted persons and just six percent of those raised
by their biological parents, agree that I feel confused about who is a
member of my family and who is not a nearly three-fold diference
SER 332
34
between the donor conceived and the adopted.
50
At the end of our survey,
one respondent commented, I am still having problems puting my real
family together.
Te concerns of donor ofspring do not just lie with purely emotional
maters about identity and kinship, as profoundly important as those
concerns are. Tey also have urgent, genuine medical concerns. Tey fear
unknowingly dating one of their half-siblings or they fear their future
children unknowingly dating the children of one of their half-siblings.
Tis concern is not at all unreasonable. Some donors have very
large numbers of ofspring. And would-be mothers from particular sub-
groups tend to favor certain kinds of donors. For example, if an atractive,
well-educated sperm donor also happens to mention in his application
that he has a lesbian sister and wants to help lesbian moms, its likely that
lesbian moms will fnd his profle of interest and consider buying a vial
of his sperm. Add that together with the fact that lesbian and gay parents
tend to concentrate in lesbian and gay- friendly cities and neighborhoods
and, bingo, your lesbian friend at work might well be the mom of your
daughters half-brother. Te same social network argument can be made
about the independent, alternative-life style embracing women who might
opt for being a single mom by choice and who move in circles with other
like-minded mothers. Meanwhile, although many sperm banks now serve
a national and even global clientele, some can still have strong relationships
with surrounding medical centers and the community, and thus signifcant
numbers of children who are similar in age and conceived with the same
sperm donor might live in proximity to one another. Message boards are
full of these kinds of stories. Recently one single mother by choice dis-
covered that her neighbor, with similar aged children, had used the same
sperm donor in other words, that her childrens half-siblings literally
lived down the block. Teir children were toddlers but soon they will be
teens who might well fnd the girl or boy down the street atractive.
Donor ofspring activist Narelle Grech asks, In the future, will
we all have to have a DNA test when we start dating someone, just in
case? As if to echo her question, on the Donor Sibling Registry a mom
who used a sperm donor and is unable to locate her childs half-siblings
I ncest Fears and Lack
of Medical Hi story
SER 333
35
optimistically concluded that in the future her son, who is currently still
a baby, will simply have to have genetic testing with any girl he seriously
considers having sex with.
In our survey, in the questions that asked about the feelings of
donor ofspring at age 15 and about currently being a donor ofspring, 18
percent of them said that at age 15 they were afraid about not knowing
my medical history and 15 percent said that even at that age they were
worried about my future childrens health or feelings. (At the age they
are now, 16 and 15 percent agreed with each of these sentiments.) Also,
46 percent of donor ofspring, but only 17 percent of adopted adults and
just 6 percent of those raised by their biological parents, agree, When
Im romantically atracted to someone I have worried that we could
be unknowingly related.
51
Similarly, 43 percent of adult donor ofspring,
and just 16 percent of adopted adults and 9 percent of those raised by
their biological parents, agree, I have feared having sexual relations
unknowingly with someone I am related to.
52
A fear that most people
raised by their biological parents have never even considered and basically
cannot fathom is much on the minds of many donor ofspring, far more
so even compared to the adopted.
Okay, fne, a reader might respond, but has it ever happened that
is, has anyone ever accidentally had sex with their brother or sister? Well,
yes. Last year in Britain a story came to light of twins, male and female,
separated at birth and adopted by diferent families. Tey met, fell in love,
and married and only then learned they were brother and sister.
53
Having the state say that you have no right to your medical history.
Feeling atracted to people you are unknowingly related to.
54
Realizing that
you have accidentally commited incest with your half-brother or sister.
Watching your own children entering the dating market and, with even
more trepidation than the average parent feels, worrying that they might
unknowingly date a cousin. Tese are the worries and fears of adult donor
ofspring today. And yes, all of it can happen.
And, its only going to get more confusing. One of the most startling
fndings of our study is this: Among our respondents, a full 20 percent
of donor ofspring said that, as adults, they themselves had already donated
their own sperm or eggs or been a surrogate mother. Tats compared to less
SER 334
36
than 0ne percent of the adopted adults in our survey and one percent of
those raised by their biological parents an extraordinary diference.
55
Te
donor ofspring are also much more likely than those raised by adopted
or biological parents to consider becoming donors. More than half
52 percent of donor ofspring, compared to 36 percent of adopted
adults and 34 percent raised by their biological parents, said they would
consider doing it.
56

What does all this mean? Say you are a donor ofspring in 2025,
searching for your biological father or mother. If you even fnd him or
her, theres a surprisingly good chance that he or she, too, was a donor
ofspring. You might have found your biological father or mother, but
that parent in turn has no idea where he or she came fom. Tat parent too is
missing a biological father or mother and lacking a relationship with or
information about that whole side of their family. Te fragmented families
we see today are geting broken into smaller and smaller pieces. By 2025,
the child looking for shards of family history could fnd only splinters.
SER 335
37
In the survey we included three questions that seek to measure
social and psychological outcomes for the donor ofspring.
While these three questions are rather blunt measures, they
reveal far more than has ever been known about the mental
health and well-being of adult donor ofspring and the fnd-
ings are especially illuminating because we are able to compare
them to those who were not donor conceived.
Our frst question was At any time before age 25, were you ever
in trouble with the law? A full 21 percent of donor ofspring more than
one in fve said yes
57
, compared to 18 percent of those who were adopted
and 11 percent of those raised by biological parents. (please see Table 1)
Our next question was Have you ever felt unable to control your
use of alcohol or other substances? Again, more than one in fve 21
percent of the donor ofspring say yes. Tis compares to 17 percent of
adopted adults and 11 percent of those raised by biological parents.
And fnally we asked, Have you ever been prescribed medica-
tion for depression or other mental health problems? In this case,
those from adoptive families are the most likely to agree, with 42 percent
of them saying they have been prescribed medication for this reason. By
comparison, 31 percent of the donor conceived adults say they had, and 28
percent of those raised by their biological parents say the same thing.
58
For a look at these outcomes with signifcance tests and with con-
trols for age, gender, race, subjective family income at age 16, and mothers
education, see the odds ratios in Figure 1 (p. 115). Figure 1 makes clear
that the donor conceived and the adopted are both signifcantly more
likely than those raised by their biological parents to struggle with these
detrimental outcomes, even when controlling for socio-economic status
and other factors. Te donor conceived and the adopted are twice as
likely as those raised by biological parents to report problems with the
law. Te donor conceived are more than twice as likely as those raised by
biological parents to report substance abuse problems (with the adopted
falling between the two groups). And the donor conceived are about 1.5
times as likely as those raised by their biological parents to report mental
HOW DO DONOR
OFFSPRING FARE?
Mental Health, Addiction,
and Del i nquency
SER 336
38
health problems (with the adopted being closer to twice as likely as those
raised by biological parents to report the same thing).
In the open-ended responses to our survey, some donor ofspring
ofered comments that illustrated some of these fndings:
Ive never even thought about this before I took this survey, but yes I
stay depressed a lot, and would like to know more about my donors family
health.
I still have issues with this problem and am seeking professional help. It
has helped me to become a stronger person but has scared me emotionally.
And:
I CUT MY SELF
Others shared comments that refected the sensitivity of this subject
for them and their sometimes difcult journeys as they have sought to
make sense of it and try to come to a beter place:
I was uncomfortable with the fact that I was conceived this way at
frst. But through the support of my family and the positive environment they
provided, I turned out fne.
Tis is a very sensitive subject for me, doing this survey felt like
therapy!
I think everything was covered. I dont feel like it is a big issue for me
anymore because Im an adult with a family of my own.
Its what you choose to make of it.
And one spoke of her recent revelation:
I did not know until 3 weeks ago that any of this had happened. I lost a
baby in my 6
th
month and my mother inadvertently told me of their conception
problems. Tis survey was actually a litle spooky.
Our study also reveals signifcant experiences of social isolation
among donor ofspring. When asked Do you know other people who
were conceived with use of a sperm donor? many 54 percent say no.
When asked How do you feel talking to non-family members about
the fact that you were conceived with a sperm donor? about one-third
(34 percent) do say they are very comfortable, but nearly another third
(31 percent) say they are only somewhat comfortable. Te rest say they
are uncomfortable talking to non-family members about their origins or
Soci al Isol ation
SER 337
39
dont do it at all. Along with those who are adopted, the donor ofspring
are more likely to agree, I have experienced many losses in my life
with about one-third of donor ofspring and the adopted strongly agreeing
with this statement, compared to one-ffh of those raised by their bio-
logical parents.
59
Overall, it is probably not surprising that so many donor
ofspring agree that I dont feel that anyone really understands me.
Twenty-fve percent agree strongly, compared to 13 percent of adopted
and nine percent of those raised by biological parents.
60

Some of the responses make it clear that this survey was one of the
few if not the only time these young people had been asked questions
about their experience. Some donor ofspring seemed to fnd the survey
topic painful, and some seemed angry:
Tis survey made me feel sad and I am crying as I am typing this comment.
I would like to know other people that have been conceived by a sperm
donation and let them know that theyre not alone.
Tis is the frst time I have had anyone ask me questions of such personal
mater, but I am O.K. with it.
Yes, I thought this was very personal and it hurt a lot to give the information out.
Tis was a very personal and emotional survey. What could you possibly
get fom this type [of survey]?
Others seemed relieved that someone had shown an interest, and
they were eager to learn the results.
Wow, I am just blown away with this experience. I am pleased to have
been a part of this study. Tis is a subject that I really do not discuss openly
with anyone except very close family or fiends. I am thankful for my life and
opportunities I have. I do feel that my parents divorce was perhaps my fault.
But I had a very strong and supportive mother and grandparents. Tank you
for this opportunity.
I hope the information gathered in this survey is published in a
book or magazine so we can all see what other people like myself have had to
go through.
Many other donor ofspring had brief, positive comments to make
about the survey itself, with comments such as very interesting survey,
never seen anything else like it, and interested in seeing the results of
other people, and I think this was a good topic, and much more.
SER 338
40
Until now we have dwelled mainly on the feelings donor ofspring
have for the family members who are missing from their life their biologi-
cal father, his family, and their half-siblings. But there is also the mater
of the family who are in their life. It appears that using a sperm donor to
build a family can markedly increase tensions within that family as well.
Lynne Spencer was born in Michigan in 1957. She didnt fnd out
the truth about her conception until she was 35 years old, afer the man
she had always thought was her biological father died. Lynnes parents
had a confictual relationship. When I was in junior high school, she
said, my father asked me if I thought that he should divorce my mom.
I told him yes. Tey stayed married, but they were always bickering with
each other. Looking back, she thinks the way she was conceived did af-
fect her family.
Te environment in our house was very emotionally repressive.
Some areas were taboo to talk about. My parents would tell sexual
jokes with my aunts and uncles, but they did not talk to me about
sexuality. Te taboo of talking openly about sexuality I know was
partly due to the times, when a lot of things werent talked about
openly, but I also believe that it was even more of an uncomfort-
able topic because of the donor conception and needing to keep
that secret.
Lynne has spent a lot of time thinking about secrets and how they
afect families. Secrets, she says, always afect the interactions and relation-
ships in families, including when donor conception is kept secret. People
have to be on guard to make sure they dont accidentally give clues to the
secret. Over time, this need to hold back limits the level of emotional
intimacy, openness, and honesty between people.
Trust was a big issue too. Like many people who fnd out later in life
that they were donor conceived, Lynne feels she always knew something
was wrong. She told us:
When you grow up and your instincts are telling you one thing and
your parents the people you are supposed to be able to trust the
most in your life are telling you something else, your whole sense
of what is true and not true is all confused. You question your own
instincts. You dont know when to believe your own thoughts and
feelings, or not.
Fami ly I nstabi l ity
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41
Like Lynne, Victoria Reilly, now in her sixties, feels that the deci-
sion to use a sperm donor to conceive a child, and the secret her parents
kept, caused a great deal of stress in her family. I think that it put a terrible
strain on my mother who always tried to be the mediator, she says. I
believe that her carrying a child conceived by another mans sperm and
raising that child caused [my father] a deep hurt. She doesnt think her
father is the only man who might feel this way about donor conception.
I think other men whose wives use the DI [donor insemination] method
to conceive might also have a hard time dealing with the fact their wives
are pregnant by another man, she says. I think it is not good for family
dynamics.
A history of infertility. Geting pregnant from another man. Keeping
an enormous secret from your child and everyone else. Raising a child in
which one parent is biologically related to the child and another is not.
Tese experiences and more might account for the strains one hears
about when donor conceived adults talk about the families they grew up
in. Perhaps not surprisingly, the result can be divorce.
Many observers have noted how ofen donor conceived people who
speak out about their stories also tell stories of their parents divorce. In
our study the divorce rate for married couples who use donor concep-
tion is indeed higher than one would expect. As Figure 4 (p. 117) shows,
the married heterosexual parents of the donor conceived persons were
unusually likely to have divorced, with 27 percent of them reporting that
their parents divorced before the respondent was age 16, compared to
14 percent of those who were adopted and 25 percent of those raised by
their biological parents.
While the percentage of donor ofspring whose parents divorced is
not a great deal higher than for those raised, for example, by their biological
parents, it is signifcant for several reasons. Many children raised by their
biological parents are conceived before or shortly afer their parents marry,
while heterosexual married couples do not typically consider other means
of having a child whether using reproductive technology or adopting
without frst trying for some years to conceive a child the old fashioned
way. Most divorces occur very early in marriages, so everything else being
equal, those raised by their biological parents should be much more likely
SER 340
42
to have experienced parental divorce than those who were conceived with
donor sperm, or those who were adopted. Yet the percentage of donor
conceived people who experienced their parents divorce appears to be
slightly more than that of those raised by their biological parents. And,
notably, the percentage of donor ofspring whose parents divorced is two
times that of those who were adopted. Both groups of parents would likely
have turned to donor conception or adoption later in their marriages when
marriages, on the whole, are more stable. Tis patern that the donor
conceived are twice as likely as those who were adopted, and as likely as those
raised by their biological parents, to have seen their parents divorce strongly
suggests unusual, negative infuences on the marriages of those who used
a sperm donor to conceive their child.
61
Many donor ofspring tell stories of their parents divorce. Some of
their stories are quite complex.
Andrew is a high school math teacher in Pennsylvania, born in 1959.
His mother told him when he was about 11 or 12 that his biological father
was in fact a sperm donor. Tat summer he was visiting two cousins and
decided to share with them this whopper of a story. He reports, I had
only recently learned of my donor-conceived background, and I thought
Id impress them with this bombshell. To his horror, though, his cousin
merely replied, Oh, I already knew that. Our parents told us about it.
Andrews aunt, uncle, and cousins knew the truth about his origins even
when he himself did not. Andrew was shocked and livid.
Te fact of his donor conception was not the only unsetling factor
in Andrews life. My mother was married at the time of my conception,
but he ran of with someone else. My mom divorced him when I was
around age one. Ten, she remarried when I was six, and her second
husband adopted me. He and I never managed to establish any kind of
bond, though. He wound up dying very young at age 42 when I was
13. Mom didnt remarry afer that. Looking back, he refected, Id say I
never really had a father my whole life even when Dad (husband #2)
was alive.
Vince lives in Melbourne, Australia. Born in 1980, he found out
when he was 21 years old that he was donor conceived. Trying to describe
his family, he said, Well my story is a litle more complex than most.
SER 341
43
Mum was married in the late 70s to the man who appears on my birth
certifcate. Upon trying to start a family they discovered he was infertile,
so they saw doctors, specialists, etc., who suggested they try some new
revolutionary treatment (IVF), and mum subsequently fell pregnant
for the frst time. Tey divorced when he was one or two years old and
his mother remarried when he was about three. I grew up believing that
her second husband was my father. She changed my surname to his. He
refects, with some astonishment, I had no idea of her frst husband until
I found out everything at 21 years old. I thought it was just a classic case
of being married, divorcing and marrying someone new. But then there
was the IVF procedure thrown in the mix.
So in reality, Vince says, I have three fathers: 1) Te donor who
remains a mystery, 2) Mums frst husband who was there when I was
born and remains on my birth certifcate, and 3) the father who raised
me from around three years old, who I know as my dad. Now how, he
asks, does all this shape me as a person? At age 29, Vince is trying to
fgure that out.
Our data refect that the donor conceived experience a particularly
high degree of transitions in their family lives as they are growing up. Te
transitions we asked about included not only divorce but also parental
remarriage or formation of a new live-in relationship, a parental remarriage
or new live-in relationship ending in divorce or break up, losing touch with
a parent, and a parent dying. Again, its telling to compare the donor con-
ceived born to heterosexual, married parents with those who were adopted
by heterosexual, married parents. As Figure 3a (p. 116) reveals, 44 percent
of the donor conceived experienced one or more family transitions
between their birth and age 16, compared to 22 percent of the adopted.
62

Remarriages have a higher divorce rate than frst marriages, and live-in
relationships are even more unstable. For the donor conceived, not only
are their sperm donor biological fathers generally absent and unknown to
them, but a lot more people are likely to be coming into and too ofen
going out of their lives.
When they grow up, a high number well over half (57 percent)
of donor ofspring agree that I feel that I can depend on my friends
more than my family which is about twice as many as those who
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44
grew up with their biological parents (29 percent).
63
Amid a maelstrom of
people moving in and out of their lives, the donor ofspring too ofen can
feel lost and alone.
For decades, virtually anyone conceived in a clinic with use of donor
sperm was born to a woman married to a man at the time of conception.
Doctors simply would not have provided the service if she had been un-
married. During the 1970s and 1980s, that picture began to change. Among
todays adults who are sperm donor ofspring, one can fnd persons who
were born to single mothers and lesbian couples, as well as to heterosexual
married couples.
In our survey, 262 of the donor conceived report that they were born
to heterosexual married couples, 113 to single mothers, and 39 to lesbian
couples. While at frst glance the number of those born to lesbian couples
might seem rather small, our survey is notable for having even 39 respondents
who grew up with this experience. Most studies of the ofspring of lesbian
or gay parents are based on a smaller or similar number of respondents, and
they typically lack the comparison groups that our survey ofers.
64
Perhaps most striking is how similar all three groups of donor ofspring
(those conceived to lesbian couples, single mothers, or heterosexual couples)
appear to be in their atitudes and experiences. Te fgures referred to below
are found in Table 2. (p. 109)
In all three groups, between 40 and 45 percent say, I feel confused
about who is a member of my family and who is not.
65

Between 40 and 45 percent say I have feared having sexual relations
unknowingly with someone I am related to.
Between 40 and 45 percent say When Im romantically atracted to
someone I have worried that we could be unknowingly related.
Between 40 and 50 say I worry that my mother might have lied to
me about important maters when I was growing up.
Roughly similar proportions appear to agree I have worried that if I try
to get more information about or have a relationship with my sperm donor,
my mother and/or the father who raised me would feel angry or hurt.
More than half say When I see someone who resembles me I ofen
wonder if we are related.
Withi n the Sperm Donor
Conceived: Of fspri ng of
Heterosexual Married
Couples, Si ngle Mothers
by Choice, and Lesbi an
Couples
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45
More than half say I feel that I can depend on my friends more
than my family.
More than half say I dont feel that anyone really understands me.
But there also appear to be diferences. In general, the donor con-
ceived persons born to single mothers seem to be more curious about their
absent biological father, and seem to be hurting more, than those born to
couples, whether those couples were heterosexual or lesbian.
Meanwhile, compared to those born to single mothers or hetero-
sexual couples, those born to lesbian couples seem overall to be somewhat
less curious about their absent biological father, and somewhat less likely
to report that they are hurting but, at the same time, a substantial mi-
nority of those born to lesbian couples do report distressing experiences
and outcomes. One caution is that because there are 39 ofspring of lesbian
couples in our study, for the most part our fndings related to that group can
only suggest how well or how poorly they are faring. (Other ofen-cited studies
of ofspring of lesbian couples are also challenged by similarly small, or even
smaller, numbers.) However, in some cases where noted signifcance tests do
reveal signifcant diferences for the ofspring of lesbian couples in our study.
First, lets look at those born to single mothers by choice. Te donor
ofspring born to single mothers appear more likely than the other two
groups to agree that: I fnd myself wondering what my sperm donors
family is like. Most (78 percent) of those born to single moms said this,
compared to two-thirds of those born to lesbian couples or married het-
erosexual parents.
66
Regarding the statement My sperm donor is half of who I am, a
full 71 percent of those born to single moms agree, compared to just under
half (46 percent) of those born to lesbian moms and almost two-thirds
(65 percent) of those with married heterosexual parents.
67
Next, lets look at those born to lesbian parents. Tose who had
lesbian moms at birth appear less likely than those who had married
heterosexual parents or a single mom at birth to agree with some state-
ments, such as those listed below. Still, its worth noting that substantial
minorities and in one case a majority of those with lesbian moms do
appear to agree with the following statements:
68

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46
One-third (33 percent) of those born to lesbian moms say Te
circumstances of my conception bother me.
One-third (33 percent) say When I see friends with their biological
fathers and mothers, it makes me feel sad.
More than a third (36 percent) agree It bothers me that money
was exchanged in order to conceive me.
Well over a third (38 percent) say It hurts when I hear other people
talk about their genealogical background.
Nearly half (46 percent) say My sperm donor is half of who I am.
More than half (59 percent) say I sometimes wonder if my sperm
donors family would want to know me.
With regard to family transitions (see Figure 3b, p.116), the donor
conceived born to lesbian mothers appear only slightly less likely to have
had one or more family transitions before age 16, compared to the donor
conceived born to heterosexual married parents.
69
From the same fgures,
the single mothers by choice appear to have a higher number of transitions,
but we have to keep in mind that if the single mother married or moved
in with someone, that would count as at least one transition. Still, with
about half (49 percent) of the ofspring of single mothers by choice in our
sample reporting one or more family transitions between their birth and
age 16, its clear that family change was not uncommon for them.
How might these feelings and experiences, taken together, afect
young people born via donor insemination to lesbian couples or single
mothers? As mentioned earlier, we asked three questions about outcomes
related to problems with the law, mental health, and substance abuse.
Table 3 (p. 111) reports the percentage of respondents who reported each
of three conditions, by origin. Te table further reports the breakdowns
within the donor conceived for those born to married heterosexual par-
ents, lesbian couples, and single mothers. Details on signifcance tests
are available in the table. Also, Figure 2 (p. 115) provides odds ratios with
controls for socio-economic status and other factors.
Te frst question was, At any time before age 25, were you ever in
trouble with the law? Of those raised by their biological parents, only
11 percent said yes. By contrast, more than twice as many of those who
were born to a single mother who used a sperm donor 26 percent said
SER 345
47
yes, and 20 percent of the donor conceived born to married heterosexual
parents said the same thing. On this outcome, the donor conceived born
to lesbian mothers appear perhaps not that diferent than those raised by
their biological parents. In our sample, 13 percent of those born to lesbian
mothers said they had problems with the law growing up.
70
Te second question was, Have you ever been prescribed medica-
tion for depression or other mental health problems? Tis time it is the
young adults who were adopted who stand out 43 percent of the adopted
adults say that they have been prescribed medication for depression or
other mental health problems. Te donor conceived young people appear
only slightly more likely than those raised by their biological parents to say
theyve been prescribed medication for these reasons, and the responses
for most groups of the donor conceived are statistically, signifcantly lower
than the responses for the adopted.
71
Te fnal question was, Have you ever felt unable to control your
use of alcohol or other substances? Just 11 percent of those raised by their
biological parents said yes to this question. By contrast, well over twice
as many 26 percent of the donor conceived born to a single mother
said yes to this question. Tis time, though, those born to lesbian couples
also appear much more likely than those raised by their biological parents
to report problems with substance abuse more than one-ffh, or 21
percent. (Meanwhile, the donor conceived born to married heterosexual
parents are again more likely than those raised by their biological parents
to report this kind of problem, but among the donor conceived they were
faring the best on this measure, at 17 percent.) Overall, all three groups of
the donor conceived in our study report more substance abuse problems
compared to those raised by their biological parents.
72
To summarize this section:
Sperm donor conceived persons fom all three family structures at birth
heterosexual married parents, lesbian couples, or single mothers share many
atitudes and experiences in common.
But there are diferences. For example, compared to others who are
donor conceived, the donor conceived born to single mothers seem to be more
curious and more distressed about their origins. Tey are more than twice as
likely as those raised by their biological parents to have had problems with the
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48
law, and more than twice as likely as those raised by their biological parents
to have struggled with substance abuse.
Meanwhile, those born to lesbian mothers seem to express somewhat
less curiosity and less distress about their origins. Still, substantial minorities,
and sometimes majorities, of the donor conceived born to lesbian couples in
our study do express these troubled feelings, and more than half of them report
curiosity about their biological father and his family. Tose born to lesbian
couples also appear nearly twice as likely as those raised by their biological
parents to say they have struggled with substance abuse.
Overall, although there are varieties of experiences within the donor
conceived, as a group the donor conceived are hurting more, are more confused,
feel more isolated fom their families, and on some important measures have
worse outcomes, than those raised by their biological parents, and no groups
of donor ofspring appear to be exempted fom these possible risks.
One thing our study makes clear, if it was not clear already, is that
donor conceived adults do not speak with one voice. Tere is diversity of
experience and opinion among them, as with any group. Some sufer quite
a bit and feel very lost and alone. Some are angry. Many are confused about
who is and is not a part of their family. As a group they are signifcantly
more likely than other groups to experience negative outcomes. Most,
as we will see, believe strongly in the childs right to know who his or her
father is. But there are also donor ofspring who say they are not greatly
impacted by the whole thing. Teyre fne.
In our survey questions asking how respondents felt at age 15 and
currently about being donor conceived, some donor conceived persons
said they felt special (28 percent at age 15, 26 percent now); cool (19
percent earlier, 20 percent now); proud (12 percent earlier, 16 percent
now); wanted (16 percent earlier, 15 percent now), and a signifcant
minority embrace the more neutral but still basically positive phrasing
of not a big deal (37 percent earlier, 43 percent now).
From the open-ended question at the end of our survey, here are
the unambiguously positive statements that donor ofspring wrote:
I am proud of being who I am, and grateful for having such a
magnifcent family.
And some aref i ne
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49
Being that I am a donor child I believe that my mom and my dad are
my real family. Tey raised me and cared for me my whole life and I love them
more than anything.
COMFORTABLE
I had a very happy childhood with my two mothers, we continue to have
a great relationship.
I have no problem being a donor child.
I think that even though you were not conceived in a traditional way the
love that you receive when you get into the world can make all of the diference
in the way you feel about yourself.
I think those parents are more imp[ortant] who gave birth to the baby
and take care of her rather than donor.
I was very comfortable and cool.
My moms are both awesome and have done a great job raising us.
Im lucky!
My life has been good so far!
Sperm donating is a great thing. It helps out families.
I think having the donor option is great, there are a lot of good people
out there who really want kids.
We should be cheered when we hear these stories. Whenever any-
one from any kind of background says they are doing well, thats good
news. But it is also true that their voices do not discount the other voices.
Rather than pit those who are fne and those who are sufering against
each other, we should ask, rather, are any being harmed at all. Our study
strongly suggests there are serious possible harms and risks associated with
being conceived with donor sperm. Tese fndings should be of concern
to any policy maker, health professional, parent or would-be parent, and
social leader in the nations that allow this practice.

SER 348
SER 349
51
Spend a litle time talking with donor ofspring and the theme
of secrecy will arise again and again.
At a British conference, donor ofspring Lauren Taylor reported,
When secrets are kept, the children ofen grow up sensing something is
diferent within their family. Te funny thing is this is not necessarily due
to what the parents do say, but as a result of what the parents dont say.
73

American author Lynne Spencer shared at the conference, I cringe from
the tension I grew up in because of the shadow of secrecy. My sister and
I knew our dad had secrets from us. During my fathers illness preceding
his death, I wrote in my journal: It feels like hes hiding some secrets
from us, like Fort Knox.
74
Another participant said Its only when you
introduce secrecy that problems start, big bad problemsshame thrives
on secrecy.
75
Still another said Secrecy breeds mistrust [it] leads to
shame, stigma and discomfort.
76
Many at the conference spoke eloquently and poignantly of how
the secrets damaged their relationships with their parents and hurt their
families. What I feel sad about is that the secret in our family distanced
[my father] from the confdence that he should have felt, that sense of
claiming me as his son and really inhabiting the role of father, said flm
maker Barry Stevens. Te secret sits in the family like a litle time
bomb in the centre of things.
77

Donor ofspring Suzanne Ariel reported, Tey say As long as you
love the child enough and want them badly enough, the truth really wont
mater. But, were all here to tell you that the truth does mater. Living as
a family with a terrible secret robs the family. Its a terrible, terrible thing
to have happen. Tis rotenness just gets worse over the years.
78

Fort Knox, a time bomb, rotenness, robbing relationships: this is
how donor ofspring talk about the secrets that too ofen lie at the heart
of their families.
Our study makes clear that a legacy of distrust can mark these fami-
lies. Almost half of donor ofspring (47 percent) agree, I worry that my
mother might have lied to me about important maters when I was
growing up. Tis compares with 27 percent of those who were adopted
and 18 percent raised by their biological parents.
79
Not only are the donor
conceived more than two and a half times as likely as those raised by their
SECRETS &
ANONYMITY

It changes your character, when
youre always deceiving people.
Its dreadful.
Ina, who used donor insemi-
nation to conceive a child in
Britain almost 60 years ago,
interviewed in Ofspring,
a documentary by Barry
Stevens
SER 350
52
biological parents to agree with this statement, they are about four times
as likely to agree strongly.
Similarly, 43 percent of donor ofspring, compared to 22 percent and
15 percent, respectively, of those raised by adoptive or biological parents,
agree that I worry that my father might have lied to me about impor-
tant maters when I was growing up.
80
Compared to those raised by
biological parents, the donor ofspring are more than four times as likely
to agree strongly. In the open ended responses to our study, one donor
ofspring said, [I am] currently not on seeing or speaking terms with family
because of this.
Afer fnding out she was donor conceived, Stina recalls, it felt like:
somebody very close to me had died. Every time I remembered
the news about my conception, I felt an utermost pain. I was very
disappointed in my parents that they had kept this secret for so
long, and that they had actually agreed to an anonymous donation
so that I could never fnd out who the donor is.
Donor conception has always been shrouded in secrecy. Anonymity
is the thick cloth that permits no one to look inside. For years, the medical
profession has touted anonymity as the answer to the quandaries created
by sperm and egg donation. Anonymity protects the donor from having
to confront the inconvenient truth that a child might be born from his or
her own body. It protects parents who do not wish for an outside party
to intrude on their family, and who quite ofen choose not to tell their
children. And it certainly facilitates the buying and selling of sperm and
eggs as products, no longer identifed with one wholly unique human
being whose life continues to evolve long afer the donation is made.
As a director of one of the oldest sperm banks in the U.S. said, [Without
anonymity], youre going to lose the really smart, the really wonderful
people who I think are going to question, Do I really want to be in a
situation where, down the road, someone may contact me?
81
Anonymous donation remains standard practice in the U.S. fertility
industry, but changes are percolating, slowly. For some time, at least some
professionals involved with donor insemination families have advocated
greater openness with the children. Te Sperm Bank of California was a
pioneer in its early eforts to establish an ID release program, beginning
Endi ng Anonymous
Donation?
SER 351
53
in 1983, whereby donor ofspring could be given the name of their sperm
donor once the ofspring turned 18 years old.
82
Other sperm banks are
experimenting with ofering at least some ID release for known donors,
or, at the least, providing a great deal more non-identifying information
about the donor than they have provided in the past.
Tere are also growing pressures on the U.S. sperm bank industry
to establish a voluntary or mandatory registry service. Yet even though
the leading professional organization in the U.S., the American Society for
Reproductive Medicine, now recommends that parents who use sperm or
egg donors disclose this fact to their children, using an anonymous donor
remains the choice of many would-be parents who want to have control
over what their child knows, when their child knows it, and who might
be involved in their childs life. In the U.S., the balance is greatly tilted
toward the rights of donors, parents, and would-be parents.
In at least some other nations, the balance is shifing to give more
atention to the rights of the ofspring. In recent years Britain, Sweden,
Norway, the Netherlands, Switzerland, and some parts of Australia and New
Zealand have banned anonymous gamete donation. Croatia has become
the most recent nation to consider such a law.
83
In Canada, a class-action
suit has been launched seeking the same outcome.
84
Advocates make the
case in part based on the UN Convention on the Rights of the Child, rati-
fed in 1989 and signed by all member organizations except the U.S. and
Somalia, which states that the child shall have the right from birth to
a name, the right to acquire a nationality and, as far as possible, the right
to know and be cared for by his or her parents.
85
Transcripts of debates at
the time make it clear that UN leaders were referring to a childs mother
and father. Te right to know your parents makes no sense unless these
people are understood to be biological parents.
86
In nations that have banned anonymity the regulations vary, but
generally the child has the right to request from a sperm or egg bank
contact information about his or her biological parent when the child
reaches around 15 to 18 years old. In some cases these nations have also
established registries to help donor ofspring born before the new law was
in place to try to fnd their biological fathers and mothers.
In Britain, around the time that anonymity was banned, those
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54
opposing the ban warned ofen that ending anonymity would dry up all
the sperm in the U.K. Several news articles claimed there was only one
sperm donor lef in Scotland.
87
Experts raised worries of women turning
to the open market for fresh sperm and, briefy, a website did exist
that allowed women to obtain fresh, anonymous sperm from men who
were willing to circumvent the new law in exchange for cold cash. Even
the National Health Service joined in, actively seeking to recruit sperm
and egg donors, and trying to entice young men with an inexplicably crass
campaign centered around the slogan Give a toss (toss being a British
slang term associated with masturbation).
But what really happened? It turns out those worries were for naught.
In fact, even with the prospect of their over-18 progeny someday seeking
them out, men in Britain are still signing up to be sperm donors, and a
few more women are even signing up to be egg donors. (Eggs have long
been scarce in Britain, both before and afer the ban, which is why British
women typically go to Spain, eastern Europe, or Russia for eggs.) Laura
Witjens, chair of the National Gamete Donor Trust in the UK, reported
in summer 2009 that donor numbers for both sperm and eggs have gone
UP since the removal of anonymity, based on the governments own
fgures (capital leters hers).
88

In the end, though, the question of whether banning anonymity will
lead to an increase or a decrease in sperm and egg donations is a second-
ary one. Te primary question is whether it is morally right for the state
actively to deny some citizens the knowledge of who their parents are.
Several nations have decided the answer is no.
No mater where you live, or what the law says you have to do,
studies and anecdotal evidence are building a powerful case that if one
does use a sperm or egg donor to have a child, telling that child the truth
about his or her origins is the right way to go.
Parents might resist telling their children the truth for any number
of reasons. Perhaps because they want to maintain the public illusion of
fertility, or they are afraid the truth will make their child love them less,
or they are ashamed and embarrassed and dont know how to bring the
topic up. Or perhaps they think their child is too young to understand, or
Truth Tel l i ng
SER 353
55
they are afraid the donor will wreak havoc on their familys lives or all
of these reasons and more. But decades of reports from donor conceived
people who learned the truth, somehow, and the stories they tell of how
their families were warped and damaged by the secret their parents tried
to keep and their massive loss of trust in their parents once they learned
the truth all point to the same underlying and timeless principle: Hon-
esty really is the best policy.
Even if one could assume that children are beter of not knowing,
parents cannot guarantee their child will never fnd out. Someone else
in the childs life an aunt, grandparent, or family friend might tell the
child. Or the truth will come out in the midst of family confict or divorce,
or afer the death of the man the child thought was his or her father. If
the social father (that is, the person the ofspring understands to be his
or her father) develops a serious illness, the parents might feel it is kinder
to tell the child that, in fact, the child is probably not at genetic risk for
that illness. And its astonishing how many stories one hears about do-
nor ofspring who stumbled upon the truth in a science class or medical
school program when, through simple genetic study or testing for a class
project, it became clear that at least one of their parents was not, in fact,
their biological parent.
Studies are now showing that telling a child early and ofen about
his or her donor origins generally appears to produce less negative response
in the child.
89
A number of organizations have responded with resources
to help in telling.
90
In our study, the donor ofspring as a group report a fairly early and
high degree of openness among their parents. But our sample of 485 donor
ofspring only includes people who know their status. If it were somehow pos-
sible to sample all adult donor ofspring, including the many who do not
know or suspect they are donor conceived, by defnition we would fnd
many more donor ofspring whose parents were not open with them.
We put this question to the donor ofspring: Parents vary widely
in whether and how they tell their children that they were conceived
with donor sperm. Tinking carefully, which of the following catego-
ries best describes you? Tese were the responses:
My parent(s) were always open with me about how I was conceived: 59 percent
My parent(s) kept the fact of my donor conception a secret I only
SER 354
56
learned in an accidental or unplanned way: 20 percent
My parent(s) intentionally revealed the facts of my donor conception to
me sometime before I was 12 years old: 7 percent
My parent(s) intentionally revealed the facts of my donor conception to
me sometime afer I was 12 years old: 9 percent
As we see, well over half (59 percent) of the donor ofspring had
parents who were always open with them. Another 16 percent had par-
ents who were not open from the childs earliest memories, but who did
intentionally tell the child the truth either before (7 percent) or afer
(9 percent) the child was 12 years old. At the same time, one in fve (20
percent) say their parents tried to keep it a secret, leaving their child to
fnd out in an accidental or unplanned way. Because donor ofspring ofen
say that fnding out when you are a teenager that your father is not your
father is exceptionally devastating, we might say that the 9 percent who
found out as teenagers, added with the 20 percent whose parents tried
unsuccessfully to keep it a secret, form well over a quarter of our sample
who discovered the truth in a far less than ideal way.
Anonymity, secrecy, disclosure, telling, ID release, known donors,
registries these are the terms one hears, over and over, in debates about
donor conception. In these debates, there is one potential question youre
supposed to ignore entirely. Tat question is this: Is secrecy the main
problem with donor conception, or is donor conception itself the main
problem?
Among experts today, there is considerable and growing support
for what we might call the good donor conception narrative. Accord-
ing to this narrative, its not donor conception that harms children but
rather the way that parents handle it. If parents tell their child the truth
early and ofen, they say, the grown children will be fne. Until now, this
assumption has not been tested.
Lets look again at our data. Although just over a quarter of our
group found out about their origins in what we might consider a less
than ideal or damaging way, nearly half of the donor ofspring in our
study (47 percent) agree, I worry that my mother might have lied to
me about important maters when I was growing up, and 43 percent say
the same thing about their fathers. At least some of the donor ofspring
Is Secrecy
the Mai n Problem?
SER 355
57
whose parents were open with them appear nevertheless to have serious
trust issues with their mothers and fathers.
91

We asked the donor ofspring their opinion on whether secrecy or
donor conception itself is the main problem. In the survey, our question
was this:
Some experts say that donor conception is fne for children so
long as parents tell children the truth about their conception from
an early age. Other experts say that donor conception can be hard
for children, but telling children the truth early on makes it easier for
the children. Still other experts say that donor conception is hard for
children even if their parents tell them the truth. Do you think
Tese were the responses of the donor ofspring:
Donor conception is fne for children so long as parents tell children the
truth about their conception fom an early age: 44 percent
Donor conception can be hard for children, but telling children the truth
early on makes it easier for the children: 36 percent
Donor conception is hard for children even if their parents tell them the
truth: 11 percent
Of the donor conceived adults we studied, a sizeable portion 44
percent are fairly sanguine about donor conception itself, so long as
parents tell their children the truth. But another sizeable portion 36
percent still have concerns about donor conception even if parents
tell the truth. And a noticeable minority 11 percent say that donor
conception is hard for the kids even if the parents handle it well. Tus
almost half of donor ofspring about 47 percent have concerns about
or serious objections to donor conception itself, even when parents tell
their children the truth about their origins.
Damian Adams of Australia reports: Even if anonymity was ended
it doesnt solve the problems of identity formation, heritage loss and
loss of kinshipTese problems are inherent with the concept of donor
conception. Tom Ellis of Britain concurs: Te fact that it happens at all
[is the problem].
British donor ofspring Christine Whipp elaborated:
Children should not be treated as commodities for the beneft of the
adults who commission them, and they should not be deprived of
access to and contact with their biological parents and wider families
SER 356
58
during their formative years. Donor conception cannot be practiced
nicely or humanely in a way that does not have any negative impact
on the people it creates. It must be the only medical treatment for
which somebody other than the patient has to sufer.
We looked at our data to learn more. Looking at Table 4 (p. 112), we
see that of those donor ofspring whose parents kept their origins a secret
(leaving the donor ofspring fnding out in an accidental or unplanned
way), a large proportion 51 percent report mental health issues, more
than a third 36 percent report having struggled with substance abuse,
and 29 percent report having had problems with the law. Tese diferences
are signifcant and striking.
Still, while they fared beter than those whose parents tried to keep
it a secret, those donor ofspring who say their parents were always open
with them about their origins (which were 304 of the donor ofspring in our
study) were not spared a higher likelihood of these outcomes. Compared
to those raised by their biological parents, the donor conceived whose
parents were always open with them are still signifcantly more likely to
have struggled with substance abuse issues (18 percent, compared to 11
percent raised by their biological parents) and to report problems with the
law (20 percent, compared to 11 percent raised by their biological parents).
Tese details and more are available in Table 4. (p. 112)
Some also suggest that social stigma about donor conception con-
tributes to the sufering of donor ofspring. While this might well be true,
it is instructive to look at Table 5 (p. 113), which breaks down the donor
ofspring in our study by age at the time of the survey. If social stigma was
a primary source of afiction for donor ofspring we might expect that
those who were older at the time of the survey would be hurting more.
But, on the contrary, the 18-25 year olds who responded to our survey
were more likely to agree with a number of selected statements express-
ing concern about their experience, while those who were 36-45 years of
age were generally less likely to agree with these statements of concern.
Tis analysis could suggest that the concerns of donor ofspring peak in
the young adult years, or that for some reason more recent generations
of donor ofspring are more troubled than earlier ones. Since our study
ofers a snapshot in time we really have no way of knowing. But, at a
minimum, the analysis of the responses of donor ofspring by age does
SER 357
59
not support the idea that younger donor ofspring, born and raised in an
era of increasing openness about donor conception and family diversity
in general, are less impacted by donor conception.
Overall, our study does not ofer much support for the good donor
conception narrative. Rather, the fndings suggest that if parents have
already used, or are intent on using, a sperm donor, then telling their child
the truth is defnitely the way to go. But openness alone does not appear
to resolve the potential losses, confusion, and risks that can come with
deliberately conceiving children so that they will be raised lacking at least
one of their biological parents.
SER 358
SER 359
61
In our survey, the majority of grown donor ofspring
expressed frm support for the ofsprings right to know
everything.
When asked if they felt donor conceived persons have the right:
To have non-identifying information about their sperm donor:
68 percent of donor conceived, 78 percent of adopted, and 73 percent of
those raised by biological parents say yes.
To know the identity of the donor: 67 percent of donor conceived, 52
percent of adopted, and 52 percent of those raised by biological parents say yes.
To have the opportunity to form some kind of relationship with
the donor: 63 percent of donor conceived, 48 percent of adopted, and 47
percent of those raised by biological parents say yes.
To know about the existence and number of half-siblings con-
ceived with the same donor: 64 percent of donor conceived, 62 percent
of adopted, and 62 percent of those raised by biological parents say yes.
To know the identity of half-siblings conceived with the same
donor: 62 percent of donor conceived, 54 percent of adopted, and 55
percent of those raised by biological parents say yes.
To have the opportunity as children to form some kind of rela-
tionship with half-siblings conceived with the same donor: 62 percent
of donor conceived, 49 percent of adopted, and 52 percent of those raised
by biological parents say yes.
Surprisingly, the donor conceived are actually somewhat more cau-
tious than the adopted and those raised by their biological parents when it
comes to the question of their right to have non-identifying information
about their sperm donor. But when it comes to knowing the identity of
their sperm donor and even the possibility of having a relationship with
him, the adopted and those raised by biological parents start to fall away,
while the donor conceived remain strong in their support for these rights.
Moreover, when it comes to the right to know about the existence and
number of half-siblings, all three groups broadly support this right, even
though those raised by biological parents probably have not given these
issues a moments thought before this survey arrived in their inbox. And
RIGHTS
The Chi lds
Ri ght to Know
SER 360
62
again, when it comes to the right to know the identity of their half-siblings
and to have the possibility as children of having a relationship with them,
the support of the adopted and those raised by biological parents weak-
ens, while nearly two-thirds of the donor conceived continue to support
these rights as well.
It is perhaps surprising that approximately two-thirds of this repre-
sentative group of donor ofspring appear to have no problem supporting
the broadest possible assertion of the childs right to know everything.
In U.S. law, and in the law of many other nations, donor ofspring have
absolutely none of these rights. Right now, U.S. federal and state law
couldnt care less whether donor ofspring know the identity of their
biological fathers. In fact, to be more specifc, the U.S. federal and state
law that does exist is designed explicitly to protect the would-be parents,
donors, and fertility clinic doctors who wish to deny the child, at any age,
the right to know who his or her father is. If these rights embraced by the
majority of donor ofspring became law tomorrow, the $3.3 billion U.S.
fertility industry would be upended and, at least temporarily, come to a
grinding halt.
In the open-ended question on our survey, some donor ofspring
used the space to assert their frm belief in the childs right to know:
I defnitely think that all sperm and egg donors should be easily acces-
sible and the children should defnitely have the choice to fnd out who they
are and be able to contact them.
I think it is someones right to know where and who they come fom, to
know their identity.
I think that children have a right to know ANYTHING in this situa-
tion. Also, the sperm donor should be told when they have conceived a child,
and asked if they would like a relationship.
It is important to know your identity.
But the picture does get more complicated. While the majority of
donor ofspring frmly support the childs right to know, signifcant majori-
ties of them also support, at least in the abstract, a strikingly libertarian
approach to the practice of donor conception and other reproductive
technologies.
The Ri ghts of
Would-Be Parents
SER 361
63
For starters, well over half of the donor ofspring say they favor the
practice of donor conception. When asked, What is your opinion of the
practice of donor conception? 61 percent say they favor it, compared
to 39 percent of adopted adults and 38 percent raised by their biologi-
cal parents.
92
For their thinking on donor conception and reproductive
technologies in general, take a look at their responses to the following
four statements:
93
I think every person has a right to a child: 76 percent of donor
conceived, 52 percent of adopted, and 54 percent of those raised by bio-
logical parents agree.
94

Artifcial reproductive technologies are good for children because
the children are wanted: 76 percent of donor conceived, 65 percent of
adopted, and 61 percent of those raised by biological parents agree.
95

Our society should encourage people to donate their sperm or
eggs to other people who want them: 73 percent of donor conceived, 50
percent of adopted, and 42 percent of those raised by biological parents
agree.
96
Health insurance plans and government policies should make
it easier for people to have babies with donated sperm or eggs: 76
percent of donor conceived, 60 percent of adopted, and 54 percent of
those raised by biological parents agree.
97
In response to each of these statements, a large majority of the donor
conceived adults around three-quarters support strong assertions of
the rights of adults to access reproductive technologies, including donor
conception, and they support the strengthening of laws and policies to help
them do so. If every one of these claims became U.S. law tomorrow, fertility
clinic directors around the country would have reason to celebrate.
Some donor ofspring used the open-ended question at the end of
our survey to assert their belief in the rights of adults to access a range of
reproductive technologies, including donor conception:
Everyone has the right to follow their own paths in life without judg-
ments fom others.
Everyone out there deserves to have the opportunity to be a parent, even
if they have to do it by sperm donation, as long as they dont have a criminal
history of crimes against children.
SER 362
64
Everyone should have the right to donors.
I think every person has the right to conceive a child and if the person
cannot do this naturally they should use all the ways.
I think people should be fee to do whatever they want to do. I dont
condone cloning of human beings. But however a person decides to have a
child, it should be a blessing.
Very important for Gay and Lesbian families to have equal rights as
others. Please be fair to them.
I think that donor conception is a wonderful thing and I think every
person that really wants to have a baby and believes that she or he wants to
be a parent and would be a good parent should have the right to have a baby
and sperm donors should be widely accepted in this day and age.
As if to underline these atitudes, recall that the donor ofspring
themselves are far more likely to consider donating their own sperm or
eggs or being a surrogate mother, and a great many of them have actually
done it. One in fve report they have already donated their own sperm or
eggs or been a surrogate mother, while almost no one among the adopted
or those raised by their biological parents had done so.
But before trying to make sense of all this, how about one more
surprise? In response to the statement, Reproductive cloning should
be ofered to people who dont have any other way to have a baby,
a majority 64 percent of donor ofspring agree, compared to just 24
percent of those who are adopted and 24 percent of those raised by their
biological parents.
98
Every nation in the world at least pays lip service to
the idea that reproductive cloning is wrong. But a majority of the donor
ofspring say its just fne.
How can the donor ofspring, as a group, embrace both the childs
right to know (which happens to be in direct contradiction to current U.S.
law) and the would-be parents right to access a variety of reproductive
technologies, anytime, anywhere (which goes well beyond even current
U.S. law)? Do the donor ofspring want some kind of weirdly-regulated
Wild West, in which adults can cook up babies any way they wish so long
as the babies get a thick fle of information and a chance someday to meet
everyone involved? Maybe.
But its also possible that the picture is more complex than it frst
So Whats Up?
SER 363
65
appears. While the donor ofspring are quite supportive of donor con-
ception in the abstract and more supportive than their peers who
were adopted or raised by their biological parents it appears that the
closer the questions get to their own experience, the less they like it. For
example, they are more likely to feel repelled by the thought of money
being involved in these donated transactions and money is almost
always involved. Forty-two percent of donor ofspring, compared to 24
percent from adoptive families and 21 percent raised by biological parents,
agree that It is wrong for people to provide their sperm or eggs for
a fee to others who wish to have children.
99

Te deliberate infiction of loss upon the child also concerns the
donor ofspring. Forty-four percent, compared to 30 percent of adopted
adults and 38 percent raised by their biological parents, agree that It
is wrong to deliberately conceive a fatherless child.
100
Similarly, 42
percent, compared to 35 and 41 percent, respectively, of those raised by
adoptive or biological parents, agree that It is wrong to deliberately
conceive a motherless child.
101
,
102
Finally, more than one-third of donor
ofspring (37 percent), compared to 19 percent of adopted adults and 25
percent raised by their biological parents, agree that If I had a friend
who wanted to use a sperm donor to have a baby, I would encourage
her not to do it.
103
Again, its only a sizeable minority who would discour-
age their friend from having a baby the way their mom had them, but its
signifcantly more than their peers who are not donor conceived.
One explanation for this diference is that perhaps we are looking
at groups of donor ofspring who cluster around two poles. About 60
percent or so of them favor the practice of donor conception and embrace
the rights of would-be parents to access it. A good many in this group
are likely also among the majority who think, at the same time, that the
ofspring have a right to know where they come from. At the other pole
are about 40 percent of the donor ofspring who object to payment for
sperm or eggs and who feel its wrong to create babies who will, before
theyre even conceived, be denied their father or their mother. A portion
of this group are probably among those who oppose the practice of donor
conception. If a friend asked their opinion, a good many of them would
likely encourage their friend not to have a baby this way.
SER 364
66
Yet, at its root, it might not be as simple as 60 percent of donor
ofspring are basically okay with the whole thing with the important
qualifcation that the childs right to know be resolved the way they feel
it should be -- while 40 percent are troubled by much if not all of it. It
is possible that some of the conficts we see in the donor ofspring as a
group are also found within at least some donor conceived persons. In
other words, some who are sufering those we saw earlier who feel more
confusion, more loss, more pain, more isolation, and are more likely to
struggle with addiction, delinquency, and depression might also, at the
same time, embrace positive atitudes about donor conception.
104

How could this be true? Tere are several possible explanations.
For a donor conceived person, to question donor conception can be to
wrestle uncomfortably with the fact of your own existence. Donor con-
ception is why I am here, a donor conceived person might say to him or
herself. Some have no trouble reconciling that fact. When an Australian
television interviewer tried to challenge activist Myfanwy Walker with
the observation that without donor conception she wouldnt be alive
implying that her criticisms are therefore meaningless she boldly
retorted, Doesnt mater. I am here.
105
But others with misgivings might
not have the same clarity. Its also possible that donor conceived people
can think of themselves as a small, misunderstood minority. To question
or restrict donor conception, some might fear, could lead to discrimina-
tion against people like them. And, for those donor ofspring who feel
isolated and alone, some might think, if there were more like me, hey,
maybe I wouldnt feel so lonely.
It is also possible that donor ofspring who know that they are
donor conceived (which is, afer all, the only kind of donor ofspring we
could sample) have been raised with a script that afrms donor concep-
tion. What is meant by a script? Recall the resources mentioned in the
previous section, which ofer tips and talking points for telling your child
that he or she is donor-conceived. While it is only relatively recently that
a broader consensus has been reached among professionals that parents
should voluntarily tell their children the truth about their origins, and many
in this 18 to 45 year old age group were growing up when such openness
was far from de rigueur, some of the younger adults in our study might
SER 365
67
have had parents who chose to be open and positive in this way.
106
When
you have grown up with your mother warmly and frequently telling you
that sperm donation is wonderful because its what allowed her to have
you well, such enthusiasm might powerfully shape your own atitude
about the practice, despite whatever losses you might have felt.
Its also the case that the culture is largely positive about donor
conception. Everyone wants to be sensitive to infertile people. Many are
sympathetic to single women with ticking biological clocks. A good many
also want to embrace and afrm lesbian and gay parents and the choices
they make in forming their families. Given the cultural climate, perhaps
its not surprising that one fnding of our study is that donor ofspring
who have reservations about donor conception are far less likely than
those who dont have reservations to feel they can express these opinions
in public.
In our survey, we asked donor ofspring whether they favor, oppose,
or neither favor nor oppose the practice of donor conception. While 61
percent say they favor it, another 26 percent say they neither favor nor
oppose, seven percent say they oppose it, and four percent say dont
know. We then asked those who favor and those who oppose whether
they feel they can express their views in public. Of those who favor donor
conception, just 14 percent say they do not feel they can express their
positive views about donor conception in society at large. By contrast,
of those who oppose it, 46 percent said they do not feel they can express
these negative views about donor conception in society at large. In other
words, the donor ofspring who oppose donor conception are more than three
times as likely to report that they do not feel they can express their views in
society at large, compared to those who say they favor it.
Finally, while our survey turned up a majority of donor ofspring
who embrace the concept of an adult right to a child, in debates on this
topic there are dissenters. Stina says, A child is not a right, but its own
person. You do not have a right to a husband or lover either... Damian
Adams agrees, Tere is no right to a child. It is a privilege, and it is un-
fortunately a privilege not everyone can enjoy. Adam observes, Most
women are able to have children. Some arent. It isnt a right.... it just is.
Is There a
Ri ght to a Chi ld?
SER 366
68
It is no more of a right than the right to be born with good vision or good
health or good looks. We all may want these things, but we dont always
get them.
Christine Whipp shared this formulation:
Tere is a legal and moral right not to be prevented from indulging
in natural procreation, which is framed in various Human Rights
conventions. Tere is no societal right to purloin a child belong-
ing to somebody else, or to expect society to provide a child for
somebody who wishes to be a parent.
Similarly, Joanna Rose argues that Tere is the right to try to have
a child naturally within your own sexual relationshipsbut not a right to
have the genetic child of another [person] outside your sexual relation-
ships, facilitated by artifcial means.
SER 367
69
When you picture an adult whose mother used a sperm donor
to conceive him or her, who do you picture? Maybe someone
from an alternative, lefy background? Someone raised in an
increasingly secular, reproductive technology-embracing era?
Someone plain-vanilla white?
Its time to expand the picture. Two of the more interesting fndings
to come to light in this survey are how many of todays adult donor of-
spring (in our study, people who were 18 to 45 years old in the year 2008)
were raised Catholic and are still Catholic today, and how well-represented
donor ofspring are among all racial and ethnic groups, especially among
Hispanics.
We asked all survey respondents What religion if any were you
raised in? and What is your religious preference today? Tirty-six
percent of donor ofspring said they were raised Catholic, compared to
22 percent from adoptive families and 28 percent raised by their biologi-
cal parents.
107
(By contrast, persons from adoptive or biological families
and especially those from adoptive families were far more likely to
say they had been raised in a Protestant denomination.) Tis fnding is
especially striking given that Catholic teaching opposes the use of donor
insemination.
As adults, donor ofspring are also much more likely to say they are
Catholic today. About a third of donor ofspring 32 percent say Catholi-
cism is their religious preference today. By contrast, their Catholic-raised
peers from adoptive families or raised by their biological parents appear
more ofen to have lef the Catholic church.
108
As adults, 15 percent of those
from adoptive families and 19 percent of those raised by their biological
parents say that Catholicism is their religion today.
109

Finally, about a third 32 percent of donor ofspring say that they
are Protestant today, and nearly one-quarter of all three groups say their
religious preference today is none. (Six percent of donor ofspring say
they are Jewish.) So while a minority of donor ofspring do embrace a
secular belief system, the majority of them are religious and they are over-
represented in the Catholic church.
Donor Offspring
C
a
s
e
o
f T
o
d
a
y
s
Religion & Race:
The Surprising
SER 368
70
Part of the donor ofsprings over-representation in the Catholic
church might be due to their ethnicity. Among a series of standard ques-
tions inquiring about race and ethnicity, one question was this: Are you,
yourself, of Hispanic origin, such as Mexican, Puerto Rican, Cuban, or
some other Spanish background? A full one-ffh 20 percent of the
donor ofspring said they are Hispanic,
110
compared to just six percent
of those from adoptive families and seven percent of those raised by
biological parents.
111

Te donor ofspring are also surprisingly well represented
among races in general. While 69 percent of them said they are white,
another 14 percent said they are black, 13 percent said they are Asian,
and three percent said they are other or mixed race. In our study
the donor ofspring as a group are far more racially diverse than the
persons who were adopted or raised by their biological parents.
112
Todays grown donor ofspring present a striking portrait of racial,
ethnic, and religious diversity one that helps to illustrate the complexity
of their experience and the reality of their presence in every facet of
American life today.

SER 369
71
As we have pursued this study and talked with our colleagues
and friends about it, we have ofen been confronted by this well-
meaning question: Having a baby with a sperm donor isnt
that just like adoption? Among those who subscribe to this
view are advocates of family diversity who argue that donor
conception and adoption are just two among many methods
that alternative families use to build their families.
113
Te im-
plication is that if society supports adoption, it must support
donor conception too.
Tere are some similarities between donor conception and adop-
tion, but there are many more diferences. And, if anything, the similarities
between adoption and donor conception should prompt caution about
intentionally denying children the possibility of growing up with their
biological father or mother.
When advocates dismiss donor conception as being no big deal,
just like adoption, they actually reveal insensitivity to the experience
of adopted people. Over decades some adopted people have spoken of
the pain of being separated from and not knowing about their biological
origins.
114
Tey recall that when they tried to speak of their struggles they
were shamed for not showing enough appreciation to their adoptive
parents. In the U.S. and other nations, adoptees have nevertheless managed
to secure important legal changes. Keeping children with their natural
parents when possible is now a frst principle in the family courts. Open
adoption is much more common, as is retrospective access to adoption
records, although this debate is still very much in play. Tere is also greater
social awareness and acceptance of the needs that at least some adoptees
feel to know more about their origins.
115

In talking with adopted people and donor conceived people who
yearn to know more about their origins, the deep and virtually identical
question they so ofen seem to share is Why? Why did my biological
mother or father give me up? Why did they not want me? Knowing you
were wanted by the parents who raised you is undeniably important, but
Is Donor Conception
Just Li ke Adoption?
SER 370
72
this awareness does litle to heal the pain of knowing that the parents who
made you apparently did not want you. In the case of adoption, at least
children can still dream that the birth mother might have struggled with
the decision to give up her child. Perhaps the birth mother very much
wanted her baby, but because of social or economic circumstances she
simply could not raise it, or she was pressured to relinquish it. Or perhaps
the birth father would have wanted the child if only he had been informed
about the pregnancy. With donor conception, by contrast, the growing
child struggles with the dawning realization that his or her biological
father or mother sold the goods to make the child without even a look
back to say goodbye.
Advocates who claim donor conception is no big deal, just like
adoption, also reveal their ignorance about ferce controversies in the feld
of adoption, historically and today. In the recent past, children were too
readily separated from birth parents because the state decided that other,
richer or more powerful, couples were more suitable to be their parents.
Today, there remain serious controversies over open adoption, the rights
of adoptees to access their birth records, international and cross-racial
adoption, pressures on birth mothers to relinquish children, adoption
by gays, lesbians, and singles, and more.
Perhaps the most important distinction between donor concep-
tion and adoption is this: Adoption is a vital, pro-child institution, a
means by which the state rigorously screens and assigns legal parents
to already-born (or at least, already conceived) children who urgently
need loving, stable homes. In adoption, prospective parents go through
a painstaking, systematic review. Some feel the process is so intrusive that
it is humiliating. Tere are home studies. Questions about your fnances.
Your sex life. Your contacts are interviewed. With every question the pos-
sibility hangs in the balance that you might very well not get a child. It
is a tough process with one straightforward goal in mind: Protecting the
best interests of the child.
With donor conception, the state requires absolutely none of that.
Individual clinics and doctors can decide what kinds of questions they
want to ask clients who show up at their door. Tey dont conduct home
studies. No contacts are interviewed. If you can pay your medical bills,
SER 371
73
In our study, donor ofspring are very clear about the diference
between adoption and donor conception. In response to the statement,
It is beter to adopt than to use donated sperm or eggs to have a
child, nearly half of donor ofspring 48 percent agree.
117
Adoptees are
even more likely to agree 56 percent of them. And half of those raised
by their biological parents also agree 49 percent.
118
In other words, in
all three groups, overall about half or more agree that there is a clear dif-
ference between adoption and donor conception and that, if would-be
parents want a child, they should seek to adopt rather than conceive using
donated sperm or eggs.
Tere are other diferences too:
Adoption functions as an institution, the purpose of which is to fnd
parents for children who need them. Donor conception functions
as a market, the purpose of which is to create children for adults who
want them.
116
Adopted children are generally conceived unintentionally. Donor con-
ceived children are conceived very intentionally.
Few adoptive parents in the current era would dream of keeping their
childs adoption a secret from the child. But parents who use donor con-
ception and especially women who use donor eggs routinely do.
Adopted children might wrestle with the sometimes painful knowledge
that their biological parents, for whatever reason, could not or would not
raise them. At the same time, they know that the parents who adopted them
gave them a family and a home. By contrast, donor conceived children
know that the parents raising them are also the ones who intentionally
denied them a relationship with at least one of their biological parents.
Te pain they might feel was caused not by some distant birth parent who
gave them up, but by the parent who cares for them every day.
they couldnt care less about your fnances. Is the relationship in which
you plan to raise the child stable? Just say it is, and they believe you. Or
do you plan to raise the child alone? Most clinics now say thats fne, too.
Te end result is the same: A child who is being relinquished by at least
one biological parent. But compared to adoption, the process could not
be more lax.
SER 372
74
In our survey, a number of the donor ofspring expanded on this point:
I do wish more people would adopt, because there are so many children
conceived naturally that need good homes.
Tere are enough people in the world, the world cannot handle any more
of humanitys destruction of the world. Tink adoption frst.
Parents who would like to have kids but cannot conceive should adopt
because the world is already over populated and there should be equal op-
portunity to all heterosexual and homosexual parents. Teres nothing wrong
having two mothers or fathers.
DONT DO IT. ADOPT!!!
I feel that more should consider the option of adopting, as there are
many unwanted children in the world, and seeing ones own genes in a child is
not as important as saving a life.
Our study also revealed a great many diferences between donor
conception and adoption. As a group, the donor ofspring are sufering
more than those who were adopted: hurting more, feeling more con-
fused, and feeling more isolated from their families. (And as a group, the
adoptees are sufering more than those raised by their biological parents
underscoring the point that we should not separate children from bio-
logical parents lightly, but only when necessary for the childs sake.) Te
donor ofspring are more likely than the adopted to have struggled with
addiction and delinquency and, like the adopted, a signifcant number
have struggled with depression or other mental illness.
Several factors might explain why our study found that adoptees as
a whole do beter than the donor conceived. While the donor conceived
in our study had mothers with the highest level of education in all three
groups, the adoptees reported the highest level of family afuence at age
16. Te adoptees parents had the lowest rates of divorce of all the groups,
while the heterosexual married parents of the donor conceived had the
highest rate of divorce. And, while about one-ffh of adults adopted as
infants by heterosexual, married parents experienced one or more fam-
ily transitions before age 16, nearly 40 percent of donor ofspring born
to heterosexual, married parents experienced this many transitions. (See
Figure 3c, p. 117) Te greater afuence and family stability of the adoptees
SER 373
75
might explain some of the diferences (and the presence of both factors
are probably due in part to careful screening by the state, which explicitly
sought out the most stable couples to adopt children).

But beter outcomes for the adopted are likely not just the result of
having more money, or even more stable families, even though the later,
especially, is very important for child well-being. It is likely that adoptees
also beneft from being raised in this more clear and stable institution
known as adoption. An array of laws and social norms surround adoption.
People know what it is. Adopted children have a name for it. Tey have
some sense of a structure, and this structure helps them make sense of
their experience. In our study, adoptees are far less likely than the donor
conceived to say they are confused about who is a member of their family
and who is not. Tey are far less likely to say it is painful to see friends with
their biological fathers and mothers.
119
Some adoptees say that adoption
itself does not heal the wounds that arise from losing your birth mother
and father. But it seems that the care and intent that goes into adoption
can at least help.
Adoption is a good, positive, and vital institution. But the some-
times painful legacy of adoption, and the extreme seriousness with which
the state treats adoption, if anything, underscore that adoptions legality
should not justify other practices that intentionally separate children from
their biological parents.
So, to answer the question so ofen posed by well-meaning strang-
ers, no, donor conception is not just like adoption.
SER 374
SER 375
77
Based on a large, representative, comparative study of adult
donor ofspring, adoptees, and persons raised by their biologi-
cal parents, we ofer the following recommendations to leaders
in the U.S. and around the world.
to leaders in the law:
Te U.S. should follow the lead of Britain, Sweden, Norway, the
Netherlands, Switzerland, and other nations, and end the practice of
anonymous donation of sperm and eggs. Registries should be supported
that help those born before the law is changed to fnd their biological kin,
when mutually agreeable.
In line with Canadian bioethicist Margaret Somervilles recommen-
dation, the right of children to be born from one identifed, untampered-
with sperm and one identifed, untampered-with egg should be legally
afrmed.
120
In family law there is an increasing trend to recognize the legal par-
ent as the person who intended to be the parent. Yet listening to donor
ofspring reveals that intention is actually a far more problematic term
than its proponents in family law suggest. For some donor ofspring, the
very deliberateness or intention with which they were separated, before
their birth, from a biological parent is precisely the problem. Moreover,
the one group of young people in our study whose conceptions were 100
percent fully intended that is, the donor ofspring is the same group
who, on the whole, are reporting more negative outcomes and experiences
of loss, hurt, and confusion. Contrary to the arguments put forth by legal
scholars who advocate for a guiding principle based on intentional par-
enthood, there is not much empirical basis to suggest that intentional
parenthood is good for children
121
, and there are substantial reasons to
question that principle.
Recom
m
endations
End anonymous
donation.
Protect the ri ght of
chi ldren to be born
f rom identi f ied,
untampered-with egg
and sperm.
I n fami ly l aw,
recogni ze that the
value of i ntentional
parenthood i s actual ly
contested, with l ittle
empi rical basi s thus far
to support the idea that
i ntentional parenthood
i s good for chi ldren.
SER 376
78
Adoption is a child-centered institution that seeks to fnd parents
for children who need them. Te state and adoption professionals operate
amid a rigorous array of laws and practices, honed over many generations
of adoption practice, still admitedly imperfect but designed explicitly to
protect the best interest of the child, to keep children with biological kin
when possible, and to prevent any practice that suggests a baby market.
Donor conception, by contrast, currently operates as a market designed to
procure children for adults who want them. Tere is no state screening of
prospective parents. Tere is no requirement to enact policies that ensure
the best interest of the child. Te idea that children might need to know
and be in contact with their biological kin is treated as a non-issue. Tose
who support the practice of donor conception ofen claim it is no big deal
because it is just like adoption. If so, then treat it like adoption.
to leaders in health policy and practice:
Mandatory counseling of donors and parents, and would-be donors
and parents, should be in place, and should include a full exploration of
what is known about the life course experience of donor ofspring.

Some nations set this limit at around ten or twelve ofspring per
donor, which seems far more humane, from the donor ofsprings point of
view, than the current American Society of Reproductive Medicine recom-
mendation for seting the limit at twenty-fve ofspring per donor.
In the United States it is legal to conceive children using anonymous
donor sperm or eggs. At the same time, the genetic, heritable basis of
disease is increasingly important in the practice of medicine. What is the
position of pediatricians and other health professionals on the practice
of anonymous donation, conceiving children who will have dozens or
hundreds of unknown half-siblings, parents not telling their children or
their childrens doctors the truth about the childs biological origins, and
sperm and egg banks not being required to track the health of donors and
keep parents informed about genetic diseases that donors might develop
in the future? Tese questions can no longer be in the domain solely of
fertility doctors. It is time for our nations pediatricians and other health
professionals to confront, wrestle with, and take a frm stand on these
issues of urgent importance to a generation of young people.
Requi re counsel i ng.
Set l i mits on the
number of of fspri ng
born to any one donor.
Pedi atrici ans
and other health
professional s
must conf ront the
i mpl ications of
treati ng chi ldren
conceived through
anonymous donations.
To the extent that donor
conception occurs, the
state should treat donor
conception l i ke adoption.
SER 377
79
to parents and would-be parents:
Parents who use donor sperm or eggs to conceive absolutely should
tell their children the truth about their origins.
We fully sympathize with the pain of infertility and the desire to
have a child. We also ask that if you are considering having a child with
donated sperm or eggs, you avail yourself of all the available information
about the impact on children, young people, and their families of being
conceived this way. Please consider adoption, or acceptance, or being a
loving stepparent, foster parent, aunt or uncle, or community leader who
works with children. Tere are many ways to be actively involved with
raising the next generation without resorting to conceiving a child who
is purposefully destined never to share a life with at least one of his or
her biological parents.
to leaders in the media and popular culture:
In the next year there are at least three Hollywood movies slated for
release that star major actresses (Jennifer Lopez, Jennifer Aniston, and
Julianne Moore) in the role of women who have conceived using donor
sperm. Writers, directors, and producers should also consider producing
flms and other narratives that feature the profoundly moving stories of
young or grown donor ofspring.
Te U.S. media in particular needs to do a beter job of including
the voices of donor conceived adults in stories about donor conception.
Tey should no longer simply print heartwarming stories featuring the
voices of parents or would-be parents, with some cute donor conceived
babies in the background. Tose babies become teens and adults who
have their own point of view. Seek them out. Tell their stories.
to researchers and funders:
In the U.S. there is an immediate need for major, large-scale, lon-
gitudinal research on the topic of the well-being of donor ofspring to be
designed, funded, and launched.
For parents:
Tel l the truth.
For would-be parents:
Educate yoursel f
f ul ly and consider not
conceivi ng a chi ld with
Make art f rom
the poi nt of view
of donor of fspri ng.
Launch the
gold standard
research projects.
Pri nt and broadcast
medi a must do better
stories that i nclude
the voices of donor of f-
spri ng themselves.
SER 378
80
to religious leaders:
Some faith traditions have addressed the complexities of artifcial
reproductive technologies in the modern world. Most have not. Tose
religious traditions that reject, ignore, accept, or welcome these practices
must grapple with emerging evidence about their impact on children
and the broader culture. One intriguing fnding from our study is that
signifcant numbers of donor ofspring were raised in faith traditions and
identify with faith traditions today. Tey are in the churches and some of
them are hurting. What do the churches have to say?
to all of us:
Te ofspring created by reproductive technologies grow up to be
mature adults and full citizens just like every other person. Teir per-
spective on these technologies is just as important as, and perhaps more
important than, the views of doctors, parents, and would-be parents who
use these technologies.
Some donor conceived people make crass jokes or use black humor
as a coping mechanism. Tat is their right. But just as it is not appropriate
for people who are not part of a particular ethnic minority to make jokes
about that minority, it is not appropriate for those who are not donor
conceived to laugh about donor conception. Jokes about turkey basters,
masturbation, and incest are of limits. If in doubt, dont say it.
Even if all the above recommendations became realities tomor-
row, we would still, as a society, be supporting the practice of conceiving
children some number of whom will struggle with signifcant losses. In
no other area of medicine does the treatment have such enormous
potential implications for persons who themselves never sought out that
treatment (that is, the donor ofspring). In ethics, one possible guideline
is to ask not Are more harmed than not? but rather Is anyone harmed at
all? A signifcant minority, at least, of donor ofspring seriously struggle
with losses related to the circumstances of their conception and birth.
We must confront the question: Does a good society intentionally create
children in this way?
Donor of fspri ng are i n
the pews. What do you
have to say to them?
Recogni ze
that reproductive
technologies create
people, not j ust babies.
Its not f unny.
We must have an
active publ ic debate
over whether it i s
ethical for the state to
support the del i berate
conception of chi ldren
who wi l l never have the
chance to be rai sed by
thei r biological parents.
SER 379
81
Artifcial insemination is now an old-fashioned way to make a baby.
Egg donation, gestational surrogacy, embryo transfer, and creating babies
with the DNA of three parents are already in practice. Babies are now
being conceived using the sperm of dead men. A scientist has sought to
retrieve eggs from aborted female fetuses for use in research. Reproduc-
tive cloning is supported by ten percent of U.S. fertility clinic directors
as well as notable, international bioethicists (and by a majority of donor
ofspring in our study). Scientists in Japan and Australia are working to
create ofspring with two mothers or two fathers, while scientists in Brit-
ain have been granted permission for research purposes to create hybrid
embryos which contain both animal and human cells.
Our study reveals that, as a group, donor ofspring are fairly liber-
tarian in their approach to artifcial reproductive technologies in the ab-
stract. But when they tell their own stories, we learn that now-widespread
technologies are far more complicated and rife with potentially grave
losses for the child than proponents originally thought. No one can
predict how the thinking of varied donor ofspring will evolve over the
decades to come, or what positions the leaders among them will take.
At the same time, we cannot deny that those leaders have a rightful and
urgently needed role to play as our societies debate how to conceive the
next generation of children.
Elevate donor
conceived adults as
leaders i n national
and i nternational
debates about the wide
array of technologies
i n use, now and i n the
f uture.
SER 380
82
Do you agree or disagree with the following statements?
Donor
conceived Adopted Raised by bio
Strongly
agree
51 25 27
Somewhat
agree
25 27 27
Somewhat
disagree
12 23 21
Strongly
disagree
9 21 20
Dont know
2 4 4
Donor
Strongly
agree
18 7 9
Somewhat
agree
19 12 16
Somewhat
disagree
20 31 27
Strongly
disagree
36 38 36
Dont know
7 12 12
I thi nk every person
has a ri ght to a chi ld.
I f I had a f riend who
wanted to use a sperm
donor to have a baby,
I would encourage her
not to do it.
Sum
m
ary of the Data
in percentages
Table 1:
SER 381
83
Donor
Strongly
agree
40 22 18
Somewhat
agree
36 43 43
Somewhat
disagree
14 15 17
Strongly
disagree
6 7 9
Dont know
3 12 14
Donor
Strongly
agree
40 16 12
Somewhat
agree
33 34 30
Somewhat
disagree
14 24 27
Strongly
disagree
7 15 17
Dont know
6 12 14
Donor
Strongly
agree
24 27 21
Somewhat
agree
24 29 28
Somewhat
disagree
29 20 25
Strongly
disagree
17 9 12
Dont know
6 16 13
Arti f ici al reproductive
technologies are good
for chi ldren because the
chi ldren are wanted.
Our society should
encourage people to
donate thei r sperm or
eggs to other people
who want them.
It i s better to adopt
than to use donated
sperm or eggs to have
a chi ld.
SER 382
84
Donor
Strongly
agree
19 7 7
Somewhat
agree
23 17 14
Somewhat
disagree
20 32 36
Strongly
disagree
33 36 33
Dont know
6 8 10
Donor
Strongly
agree
31 7 9
Somewhat
agree
33 17 15
Somewhat
disagree
14 19 20
Strongly
disagree
16 43 41
Dont know
6 14 14
Donor
Strongly
agree
41 23 20
Somewhat
agree
35 37 34
Somewhat
disagree
13 17 19
Strongly
disagree
6 11 13
Dont know
5 12 14
It i s wrong for
people to provide thei r
sperm or eggs for a
fee to others who wi sh
to have chi ldren.
Reproductive cloni ng
should be of fered
to people who don t
have any other way
to have a baby.
Health i nsurance
pl ans and government
pol icies should make
it easier for people to
have babies with donat-
ed sperm or eggs.
SER 383
85
Donor
Strongly
agree
21 12 18
Somewhat
agree
23 18 20
Somewhat
disagree
21 31 27
Strongly
disagree
28 29 27
Dont know
7 11 8
Donor
Strongly
agree
21 14 20
Somewhat
agree
21 21 21
Somewhat
disagree
22 27 23
Strongly
disagree
27 24 26
Dont know
8 14 10
It i s wrong to
del i berately conceive
a fatherless chi ld.
It i s wrong to
del i berately conceive
a motherless chi ld.
SER 384
86
Donor
conceived
My parent(s) were always open with me about
how I was conceived
59
My parent(s) kept the fact of my donor concep-
tion a secret I only learned in an accidental or
unplanned way
20
My parent(s) intentionally revealed the facts
of my donor conception to me sometime before
I was 12 years old
7
My parent(s) intentionally revealed the facts of my
donor conception to me after I was 12 years old
9
None of the above
4
Prefer not to answer
1
Donor
conceived
10 or younger
28
11-15
31
16-20
28
Over 20
12
1
Parents vary widely i n
whether and how they
tel l thei r chi ldren that
they were conceived
with donor sperm.
Thi nki ng caref ul ly,
which of the fol lowi ng
categories best de-
scri bes you?
Of those who learned i n
accidental / unpl anned
way: At what age did
you learn?
SER 385
87
Donor
conceived
2
9
6
15
7
12
8
12
9
15
10
15
11
18
12
6
13
25
14
23
15
14
16
7
17
9
18
7
20
2
Older than 20
9
Of those whose parents
i ntentional ly revealed:
What age were you
when your parent(s)
told you that you were
conceived with the use
of a sperm donor? Your
best esti mate i s f i ne.
SER 386
88
Donor
conceived
Strongly agree
19
Somewhat agree
26
Somewhat disagree
20
Strongly disagree
30
Dont know
5
Donor
conceived
Strongly agree
32
Somewhat agree
33
Somewhat disagree
16
Strongly disagree
12
Dont know
6
Donor
conceived
Strongly agree
33
Somewhat agree
37
Somewhat disagree
13
Strongly disagree
11
Dont know
6
The ci rcumstances
of my conception
bother me.
My sperm donor
i s hal f of who I am.
I f i nd mysel f
wonderi ng what
my sperm donors
fami ly i s l i ke.
SER 387
89
Donor
conceived
Strongly agree
35
Somewhat agree
34
Somewhat disagree
13
Strongly disagree
11
Dont know
7
Donor
conceived
Strongly agree
24
Somewhat agree
29
Somewhat disagree
21
Strongly disagree
20
Dont know
7
Donor
conceived
Strongly agree
21
Somewhat agree
24
Somewhat disagree
20
Strongly disagree
28
Dont know
7
I someti mes wonder
i f my sperm donors
parents would want to
know me.
I have worried that i f
I try to get more i nfor-
mation about or have
a rel ationship with my
sperm donor, my mother
and /or the father who
rai sed me would feel an-
gry or hurt.
It bothers me that
money was exchanged
i n order to conceive me.
SER 388
90
Donor
conceived Adopted
Strongly agree
25 7
Somewhat agree
28 22
Somewhat disagree
18 21
Strongly disagree
25 47
Dont know
4 3
Donor
conceived Adopted
Strongly agree
33 31
Somewhat agree
38 35
Somewhat disagree
12 12
Strongly disagree
13 17
Dont know
5 5
Donor
conceived Adopted
Strongly agree
22 4
Somewhat agree
26 15
Somewhat disagree
20 18
Strongly disagree
28 59
Dont know
4 2
It hurts when I
hear other people tal k
about thei r genealogical
background.
I long to know more
about my ethnic or
national background.
When I see f riends with
thei r biological fathers
and mothers, it makes
me feel sad.
SER 389
91
Donor
conceived
Donor
55
Seed Giver
32
Contributor of genetic material
32
Friend
14
Uncle/Special Uncle
6
Father
14
First Father
8
Second Father
9
Other Father
8
Dad/Daddy
7
Biological Father
26
Genetic Father
26
Natural Father
11
Birth Father
10
Has a negative association/connotation
<1
Other
1
2
Which word(s) or
term(s) best descri be
what the phrase sperm
donor means to you?
(check al l that apply)
SER 390
92
Donor
conceived
Special
28
Cool
19
Embarrassed
19
Not a big deal
37
Freak of nature
10
Afraid about not knowing my medical history
18
Curious
34
Angry
15
Proud
12
Worried about my future childrens health or feelings
15
Lab experiment
13
Abandoned
8
Wanted
16
Lonely
12
Confused
19
Depressed
<1
Other
2
2
At age 15 what feel i ngs
best descri be how you
felt about bei ng a donor
conceived person?
SER 391
93
Donor
conceived
Special
26
Cool
20
Embarrassed
10
Not a big deal
43
Freak of nature
8
Afraid about not knowing my medical history
16
Curious
25
Angry
7
Proud
16
Worried about my current or
future childrens health or feelings
15
Lab experiment
8
Abandoned
6
Wanted
15
Lonely
6
Confused
9
Depressed
<1
Other
2
4
At the age you are now,
how do you feel about
bei ng a donor conceived
person?
SER 392
94
Donor
conceived
Several times a day
14
Maybe once each day
13
A few times a week
20
Maybe once a month
13
Maybe every few months
13
Almost never
17
None at all
8
2
Donor
Strongly
agree
22 20 12
Somewhat
agree
24 25 20
Somewhat
disagree
19 12 12
Strongly
disagree
29 42 53
Dont know
6 1 2
How of ten do you f i nd
yoursel f thi nki ng about
donor conception?
Growi ng up, I some-
ti mes felt l i ke an out-
sider i n my own home.
SER 393
95
Donor
Strongly
agree
21 4 2
Somewhat
agree
22 11 4
Somewhat
disagree
20 17 10
Strongly
disagree
31 67 81
Dont know
6 2 3
Donor
Strongly
agree
23 13 6
Somewhat
agree
24 14 12
Somewhat
disagree
20 14 13
Strongly
disagree
28 57 66
Dont know
5 2 4
Donor
Strongly
agree
21 10 5
Somewhat
agree
22 12 10
Somewhat
disagree
21 13 13
Strongly
disagree
27 61 64
Dont know
9 4 7

I feel conf used about
who i s a member of my
fami ly and who i s not.
I worry that my
mother mi ght have l ied
to me about i mportant
matters when I was
growi ng up.
I worry that my
father mi ght have l ied
to me about i mportant
matters when I was
growi ng up.
SER 394
96
Donor
Strongly
agree
25 15 2
Somewhat
agree
33 30 12
Somewhat
disagree
19 15 14
Strongly
disagree
18 36 67
Dont know
6 4 5
Donor
Strongly
agree
19 5 2
Somewhat
agree
27 12 4
Somewhat
disagree
20 16 10
Strongly
disagree
28 65 80
Dont know
7 3 5
Donor
Strongly
agree
21 5 3
Somewhat
agree
22 11 6
Somewhat
disagree
20 14 8
Strongly
disagree
29 66 76
Dont know
7 4 7
When I see someone
who resembles me I
of ten wonder i f we
are rel ated.
When I m romantical ly
attracted to someone I
have worried that we
could be unknowi ngly
rel ated.
I have feared havi ng
sexual rel ations
unknowi ngly with
someone I am
rel ated to.
SER 395
97
Donor
Yes
20 <1 1
No
77 99 99
Dont Know
2 0 <1
Prefer not
to answer
1 <1 <1
Donor
Yes
52 36 34
No
35 45 47
Dont Know
11 18 19
Prefer not
to answer
2 1 <1
Donor
Yes
68 78 73
No
25 13 15
Dont Know
7 8 12
Donor
Yes
67 52 52
No
24 29 27
Dont Know
9 19 21
Have you ever donated
sperm, eggs, or been a
surrogate mother?
Would you consider
donati ng sperm, eggs,
or bei ng a surrogate
mother?
Do you feel donor
conceived persons
have the ri ght:
To have non-identi f yi ng
i nformation about thei r
sperm donor?
Do you feel donor
conceived persons have
the ri ght: To know the
identity of the donor?
SER 396
98
Donor
Yes
63 48 47
No
27 29 28
Dont Know
10 23 24
Donor
Yes
64 62 62
No
26 21 21
Dont Know
10 17 16
Donor
Yes
62 54 55
No
27 25 25
Dont Know
11 20 21
Donor
Yes
62 49 52
No
27 28 25
Dont Know
10 22 23
Do you feel donor
the ri ght: To have the
opportunity to form
some ki nd of rel ation-
ship with the donor?
Do you feel donor
the ri ght: To know
about the exi stence and
number of hal f- si bl i ngs
conceived with the
same donor?
Do you feel donor
the ri ght: To know the
identity of hal f- si bl i ngs
conceived with the
same donor?
Do you feel donor
the ri ght: To have the
opportunity as chi ldren
to form some ki nd of
rel ationship with hal f-
si bl i ngs conceived with
the same donor?
SER 397
99
Donor
conceived
Yes
34
No
42
I already have a relationship with my donor
8
Dont Know
12
3
Donor
conceived
Yes
81
No
13
Dont Know
7
Donor
Strongly favor
33 17 16
Somewhat favor
28 22 22
Neither favor
or oppose
26 43 40
Somewhat oppose
4 10 11
Strongly oppose
3 5 7
Dont Know
4 3 4
Prefer not
to answer
2 1 <1
Do you want a
rel ationship with
your sperm donor?
Of those who said yes:
Do you feel its okay i n
society at l arge for you
to say that you want a
rel ationship with your
sperm donor?
What i s your opi nion
of the practice of donor
conception?
SER 398
100
Donor
Yes
81 86 88
No
14 6 5
Dont Know
4 7 7
Prefer not
to answer
1 0 0
Donor
Yes
49 75 74
No
46 15 11
Dont Know
3 9 14
Prefer not
to answer
3 1 1
Donor
conceived Adopted
Raised
by bio
Donor conception is fne for children
so long as parents tell children the
truth about their conception from an
early age
44 35 26
Donor conception can be hard for
children, but telling children the
truth early on makes it easier for
the children
36 34 33
Donor conception is hard for children
even if their parents tell them the
truth
11 17 26
Something else/none of the above
5 11 12
3 3 3
Of those who favor:
Do you feel its okay
for you to say i n society
at l arge that you favor
the practice of donor
conception?
Of those who oppose:
Do you feel its okay for
you to say i n society at
l arge that you oppose
the practice of donor
conception?
Some experts say that
donor conception i s f i ne
for chi ldren so long as
parents tel l chi ldren
the truth about thei r
conception f rom an
early age. Other experts
say that donor concep-
tion can be hard for
chi ldren, but tel l i ng
chi ldren the truth early
on makes it easier for
the chi ldren. Sti l l other
experts say that donor
conception i s hard for
chi ldren even i f thei r
parents tel l them the
truth. Do you thi nk
SER 399
101
Donor
conceived
Yes
44
No
54
2
Donor
conceived
Very Comfortable
34
Somewhat comfortable
31
Somewhat uncomfortable
18
Very uncomfortable
6
I dont talk to anyone else about it
7
3
Donor
conceived
Yes
35
No
54
Dont Know
9
2
Do you know other
people who were
conceived with use
of a sperm donor?
How do you feel tal ki ng
to non-fami ly members
about the fact that you
were conceived with a
sperm donor? Do you
feel
Have your feel i ngs
about the practice
of donor conception
changed over ti me?
SER 400
102
Donor
conceived
More positive about
the practice of donor conception
77
More negative about
the practice of donor conception
18
None of the above
4
1

Donor
Yes 31 42 28
No 66 56 71
Dont Know 1 <1 0
Prefer not
to answer
2 1 1
Donor
Yes 21 17 11
No 77 82 89
Dont Know 1 1 0
Prefer not
to answer
1 <1 1
Donor
Yes 21 18 11
No 78 81 88
Dont Know <1 1 <1
Prefer not
to answer
1 1 1

Have you become:
Have you ever
been prescri bed
medication for
depression or
other mental
health problems?
Have you ever felt
unable to control your
use of alcohol or other
substances?
At any ti me before
age 25, were you ever
i n trouble with the l aw?
SER 401
103
Donor
Protestant 34 63 53
Catholic 36 22 28
Jewish 6 4 3
Other 3 1 2
None 18 9 13
Prefer not
to answer
4 1 2
Donor
Protestant 32 54 48
Catholic 32 15 19
Jewish 6 3 2
Other 3 4 5
None 24 22 23
Prefer not
to answer
3 2 3
Donor
conceived Adopted
Raised
by bio
Very religious
21 12 15
Somewhat religious
39 46 43
Not very religious
22 27 21
Not religious at all
16 15 20
2 1 1
What rel i gion i f any
were you rai sed i n?
What i s your rel i gious
preference today?
How rel i gious do you
currently consider
yoursel f to be?
SER 402
104
Donor
conceived Adopted
Raised
by bio
Most people can be trusted
36 27 26
You cant be too careful in life
56 64 66
None of the above
7 9 7
2 1 1
Donor
Strongly
agree
29 16 10
Somewhat
agree
28 23 19
Somewhat
disagree
24 30 36
Strongly
disagree
18 27 33
Dont Know
2 5 3
Donor
Strongly
agree
33 32 20
Somewhat
agree
31 36 39
Somewhat
disagree
22 21 26
Strongly
disagree
12 10 13
Dont Know
2 2 2
I n general , would you
say most people can be
trusted or you can t be
too caref ul i n l i fe?
I feel that I can
depend on my f riends
more than my fami ly.
I have experienced
many losses i n my l i fe.
SER 403
105
Donor
Strongly
agree
25 13 9
Somewhat
agree
28 26 25
Somewhat
disagree
21 29 34
Strongly
disagree
25 30 28
Dont Know
2 2 3
Donor
Strongly
agree
34 26 23
Somewhat
agree
31 34 36
Somewhat
disagree
17 18 17
Strongly
disagree
13 12 15
Dont Know
5 10 10
Donor
Yes 20 6 7
No 78 92 92
Dont Know/ refused 2 2 1
I don t feel that anyone
real ly understands me.
My spi ritual ity has
been strengthened by
adversity i n my l i fe.
Are you, yoursel f,
of Hi spanic ori gi n
or descent, such as
Mexican, Puerto Rican,
or some other Spani sh
background?
SER 404
106
Donor
White Hispanic 66 85 68
Black Hispanic 21 0 15
Something else 12 15 18
Donor
White 69 83 87
Black 14 4 9
Asian 13 5 2
Other or mixed race 3 7 2
Dont know 1 1 0
Prefer not to answer 1 1 <1
Donor
Non Hispanic white 56 78 81
Non Hispanic black 11 4 8
Non Hispanic other 13 12 4
White Hispanic 14 5 5
Black Hispanic 4 0 1
Other Hispanic 3 1 1
Are you white Hi spanic,
bl ack Hi spanic, or some
other race?
What i s your race?
Are you
What i s your race?
SER 405
107
Donor
Far below average 8 4 8
Below average 17 14 20
Average 43 43 50
Above average 21 33 18
Far above average 9 6 3
Prefer not to answer 2 1 1
Donor
None, or Grade 1-8
1 2 3
High School Incomplete
(Grades 9-11)
6 5 7
High School Graduate
(Grade 12 or GED certifcate)
19 27 30
Business, technical, or voca-
tional school after high school
7 12 11
Some College, no 4 year
degree
24 24 26
College Graduate (B.S., B.A. ,
or other 4-Year degree)
27 15 15
Post-Graduate training or
professional schooling after
college
16 11 8
Dont Know
<1 3 1
Thi nki ng about the
ti me when you were 16
years old, compared
with American fami l ies
i n general then, would
you say your fami ly
i ncome was
What i s the hi ghest
level of education your
mother completed?
SER 406
SER 407
109
Were Sperm Donor
Conceived Who Agreed
(Strongly or Somewhat)
with Selected
Statements,by Fami ly
Structure at Bi rth
Lesbian
couples
(N=39)
Married
heterosexual
parents
(N=262)
Single
mother
(N=113)
The circumstances of my concep-
tion bother me.
33 43 48
My sperm donor is half of who I
am.
46
ab
65 71
I fnd myself wondering what my
sperm donors family is like.
67 66
b
78
I sometimes wonder if my sperm
donors family would want to
know me.
59 68 74
I have worried that if I try to get
more information about or have
a relationship with my sperm do-
nor, my mother and/or the father
who raised me would feel angry
or hurt.
44 53 50
It bothers me that money was ex-
changed in order to conceive me.
36 46 39
It hurts when I hear other people
talk about their genealogical
background.
38 51 57
I long to know more about my
ethnic or national background.
69 69 73
When I see friends with their
biological fathers and mothers, it
makes me feel sad.
33 47 50
Growing up, I sometimes felt like
an outsider in my own home.
33 46 41
I feel confused about who is a
member of my family and who is
not.
44 42 40
I worry that my mother might
have lied to me about important
matters when I was growing up.
41 47 42
I worry that my father might
have lied to me about important
matters when I was growing up.
28 44 36
When I see someone who resem-
bles me, I often wonder if we are
related.
54 58 56
When Im romantically attracted
to someone I have worried that
we could be unknowingly related.
41 45 41
I have feared having sexual rela-
tions unknowingly with someone
I am related to.
41 44 40
Percentage of
Respondents W
ho
Table 2:
SER 408
110
Lesbian
couples
(N=39)
Married
heterosexual
parents
(N=262)
Single
mother
(N=113)
I feel that I can depend on my
friends more than my family.
54 58 56
I have experienced many losses in
my life.
62 63 65
I dont feel that anyone really
understands me.
56 51 52
It is wrong for people to provide
their sperm or eggs for a fee to
others who wish to have children.
41 40 38
It is better to adopt than to use
donated sperm or eggs to have a
child.
38 49 40
Our society should encourage
people to donate their sperm or
eggs to other people who want
them.
74 74 73
Artifcial reproductive technolo-
gies are good for children because
the children are wanted.
85 76 81
If I had a friend who wanted to
use a sperm donor to have a baby,
I would encourage her not to do it.
34 39
b
28
I think every person has a right to
a child.
72 77 76
It is wrong to deliberately con-
ceive a fatherless child.
38 45
b
32
It is wrong to deliberately con-
ceive a motherless child.
26 44 33
Reproductive cloning should be
offered to people who dont have
any other way to have a baby.
54 64 65
Health insurance plans and gov-
ernment policies should make it
easier for people to have babies
with donated sperm or eggs.
74 76 80
a
Signifcantly diferent from married heterosexual parents at p < .05
(two-tailed tests)
b
Signifcantly diferent from single mother at p < .05 (two-tailed tests)
SER 409
111
Among donor conceived
Donor
conceived
(N=485)
Adopted
(N=562)
Raised by
biological
parents
(N=563)
Lesbian
mothers
(N=39)
Married
hetero-
sexual
parents
(N=262)
Single
mother
(N=113)
Problems with the law
22
a
18
b
11 13 20
c
26
ae
Mental
health problems
32
d
43
a
28 32 30
d
32
e
Substance
abuse problems
22
a
17
b
11 21 17
cf
26
ae
notes:
Ns vary slightly by outcome due to missing data. Percentages are column percentages.
a
Signifcantly diferent from raised by biological parents at p < .001 (two-tailed tests)
b
c
d
Signifcantly diferent from adopted at p < .001 (two-tailed tests)
e
f
Signifcantly diferent from donor conceived born to single mother at p < .05 (two-
tailed tests)
(
1
)
Adults who at some point were raised as children by a divorced or single parent can
be present in all categories in this table.
(
2
)
An average of the responses of the three groups of donor conceived in this table
does not equal the numbers reported for mental health, delinquency, and addiction outcomes
among the donor conceived generally, because a small number of respondents reported a dif-
ferent type of family structure at birth (e.g., heterosexual unmarried parents) or checked dont
know, prefer not to answer, etc.
(
3
)
Results for ofspring of lesbian couples are not reported as signifcant due to the
sample size (n=39) of those ofspring, similar to other studies.
(4) Some numbers in frst three columns vary slightly from Table 1 due to responses
such as dont know and prefer not to answer being included in Table 1.
Percentage of
Respondents W
ho
Table 3:
Reported Each of Three
Conditions, By Ori gi n
SER 410
112
Among donor conceived
Raised
by
biological
parents
(N=563)
Adopted
(N=562)
Parents
always open
about
conception
(N=304)
Parents kept
conception
a secret
(N=120)
Parents
revealed
conception
at age 12
or younger
(N=35)
Parents
revealed
conception
at age 13
or older
(N=52)
Problems with the law
11 18
b
20
b
29
ae
17 17
Mental health problems
28 43
a
29
dg
51
a
31 33
eg
Substance abuse problems
11 17
b
18
bf
36
ad
19 26
Notes: Ns vary slightly by outcome due to missing data. Percentages are column percentages.
a
b
c
d
e
f
Signifcantly diferent from donor conceived, parents kept a secret at p < .001 (two-tailed tests)
g
Signifcantly diferent from donor conceived, parents kept a secret at p < .05 (two-tailed tests)
Percentage of
Respondents W
ho
Table 4:
Reported Each of Three
Conditions, By Ori gi n &
By How They Found Out
About Thei r Ori gi n
SER 411
113
Percentage of
Respondents W
ho
Table 5:
18-25
(N=154)
26-35
(N=228)
36-45
(N=103)
The circumstances of my concep-
tion bother me.
50 42 44
My sperm donor is half of who I am.
66 67 59
I fnd myself wondering what my
sperm donors family is like.
75 68 64
I sometimes wonder if my sperm
donors family would want to know
me.
71 71 63
I have worried that if I try to get
more information about or have a
relationship with my sperm donor,
my mother and/or the father who
raised me would feel angry or hurt.
59 50 47
It bothers me that money was ex-
changed in order to conceive me.
46 46 38
It hurts when I hear other people
talk about their genealogical back-
ground.
59 51 47
I long to know more about my eth-
nic or national background.
74 72 65
When I see friends with their
biological fathers and mothers, it
makes me feel sad.
55 46 43
Growing up, I sometimes felt like an
outsider in my own home.
51
b
47 37
I feel confused about who is a mem-
ber of my family and who is not.
50
b
42 37
I worry that my mother might have
lied to me about important matters
when I was growing up.
53 45 42
I worry that my father might have
lied to me about important matters
when I was growing up.
47
b
43 35
When I see someone who resembles
me, I often wonder if we are related.
60
b
61 47
When Im romantically attracted
to someone I have worried that we
could be unknowingly related.
47 49
b
36
I have feared having sexual
relations unknowingly with
someone I am related to.
44 46 38
Were Sperm Donor
Conceived Who Agreed
(Strongly or Somewhat)
with Selected Statements,
by Age
SER 412
114
18-25
(N=154)
26-35
(N=228)
36-45
(N=103)
I feel that I can depend on my
friends more than my family.
56 58 56
I have experienced many losses in
my life.
64 63 66
I dont feel that anyone really un-
derstands me.
55 50 54
It is wrong for people to provide
their sperm or eggs for a fee to oth-
ers who wish to have children.
46
b
43 32
It is better to adopt than to use do-
nated sperm or eggs to have a child.
51 48 40
Our society should encourage people
to donate their sperm or eggs to
other people who want them.
67
a
77 74
Artifcial reproductive technologies
are good for children because the
children are wanted.
73 78 81
If I had a friend who wanted to use a
sperm donor to have a baby, I would
encourage her not to do it.
39 37 34
I think every person has a right to
a child.
73 79 76
It is wrong to deliberately conceive
a fatherless child.
46 44 42
It is wrong to deliberately conceive
a motherless child.
42 43 40
Reproductive cloning should be of-
fered to people who dont have any
other way to have a baby.
62 66 60
Health insurance plans and gov-
ernment policies should make it
easier for people to have babies with
75 80
b
70
a
Signifcantly diferent from 26-35 at p < .05 (two-tailed tests)
b
Signifcantly diferent from 36-45 at p < .05 (two-tailed tests)
SER 413
115
*** Signifcantly diferent from raised by biological parents at p < .001 (two-tailed tests)
** Signifcantly diferent from raised by biological parents at p < .01 (two-tailed tests)
Raised by biological parents is the reference group.
*** Signifcantly diferent from raised by biological parents at p < .001 (two-tailed tests)
** Signifcantly diferent from raised by biological parents at p < .01 (two-tailed tests)
* Signifcantly diferent from raised by biological parents at p < .05 (two-tailed tests)
Raised by biological parents is the reference group.
Odds Ratios Predicti ng
Three Conditions,
by Ori gi n, Control l i ng
for Age, Gender, Race,
Subjective Fami ly
I ncome at Age 16, and
Mothers Education
Odds Ratios Predicti ng
Three Conditions,
by Ori gi n and Fami ly
Structure, Control l i ng
for Age, Gender, Race,
Subjective Fami ly
I ncome at Age 16, and
Mothers Education
Donor Conceived
Sperm donor conceived,
lesbian mothers
Adopted
married heterosexual parents
Raised by biological parents
single mothers
Raised by biological parents
O
d
d
s

R
a
t
i
o
Conditions
2
.
0
3
*
*
*
1
.
4
9
*
*
2
.
0
5
*
*
*
1
.
8
7
*
*
*
2
.
2
9
*
*
*
1
.
8
4
*
*
1
.
0
0
1
.
0
0
1
.
0
0
Problems
with law
Mental health
problems
Substance abuse
problems
O
d
d
s

R
a
t
i
o
Conditions
1
.
0
7
1
.
6
0 1
.
9
1
*
*
2
.
4
6
*
*
1
.
3
8
1
.
3
0
2
.
2
5
2
.
7
7
*
*
*
1
.
7
8
*
1
.
0
0
1
.
0
0
1
.
0
0
Problems
with law
Mental health
problems
Substance abuse
problems
Figure 1:
Figure 2:
SER 414
116
notes:
Sperm donor conceived diferent from raised by biological parents at p < .01 (two-tailed test).
Sperm donor conceived diferent from adopted at p < .001 (two-tailed test).
Adopted diferent from raised by biological parents at p < .001 (two-tailed test).
notes:
No diferences are statistically signifcant at p < .05 (two-tailed test).
Fi gure 3a:
Percentage of
Respondents Who
Had One or More
Fami ly Transitions
Between Bi rth/
Adoption and Age 16,
by Ori gi n
n (sperm donor conceived) = 481
n (adopted) = 562
n (raised by biological parents) = 562
Fi gure 3b:
Percentage of Sperm
Donor Conceived Who
Had One or More Fami ly
Transitions Between
Bi rth/Adoption and Age
16, by Fami ly Structure
at Bi rth/Adoption
n (lesbian mothers) = 39
n (single mother) = 112
n (heterosexual married parents) = 262
2
2
%
3
5
%
Raised by
biological parents
Adopted
4
4
%
Sperm donor
conceived
3
6
%
4
9
%
3
9
%
Lesbian mothers Single mother Heterosexual
married parents
Figure 3a:
Figure 3b:
SER 415
117
notes:
Raised by biological parents diferent from adopted at p < .001 (two-tailed test).
notes:
Raised by biological parents diferent from adopted at p < .001 (two-tailed test).
2
1
%
3
2
%
Raised by
biological parents
Adopted
3
9
%
Sperm donor
conceived
1
4
%
2
5
%
Raised by
biological parents
Adopted
2
7
%
Sperm donor
conceived
Fi gure 3c:
Percentage of
Respondents With
Married Heterosexual
Parents at Bi rth/Adop-
tion Who Had One or
More Fami ly Transi-
tions Between Bi rth/
Adoption and Age 16,
by Ori gi n
n (adopted) = 519
Fi gure 4:
Percentage of
Respondents With
Married Heterosexual
Parents at Bi rth/Adop-
tion Whose Parents
Divorced by Age 16,
by Ori gi n
n (adopted) = 519
Figure 3c:
Figure 4:
SER 416
SER 417
119
summary
Abt SRBI conducted the Survey on the Identity, Kinship, Well-
Being, and Social Justice Experiences of Adults Conceived
with Donor Sperm (referred to hereafer as Donor Ofspring
Survey). Tis study was sponsored by the Institute for Ameri-
can Values. Data was collected via web interviews among 1,687
survey panel members. Te sample consisted of 562 adults
who were or thought they might be conceived through sperm
donation, including 485 who knew they were donor ofspring;
563 adults who were raised by their biological parents; and 562
adults who were adopted. Tis study was conducted from July
10 through July 28, 2008. Details on the design and execution
are provided below.
design and data collection procedures
Given that sperm donor ofspring are rare in the American popula-
tion, the qualifcation rate of donor ofspring was expected to be very low.
In order to develop a sampling methodology and measure study feasibility,
Abt SRBI conducted a pilot study. A web survey mode was chosen for
this efort due to its ability to screen many households quickly and cost
efciently. Te screener interview was made available to 31,020 individu-
als age 18-45 from Survey Sampling Internationals (SSI) SurveySpot Web
Panel. Over a period of 2 days, 1,511 screener interviews were completed.
Twenty-fve, or 1.6%, of the respondents, reported being conceived by a
donor. Based on these statistics, the following sampling approach for the
main study was developed in consultation with the study co-investigators
who held consultations in New York City with social science advisors
and others.
& Lim
itations
M
ethodology
Pi lot Study
Survey on Identity,
Ki nship, Wel l-Bei ng
and Soci al Justice
Experience of
Adults Conceived
with Donor Sperm
SER 418
120
main study design
Te main study was designed to obtain a total of 1,680 completed
surveys among respondents age 18-45. Te respondents would be dis-
tributed in three groups:
Sperm Donor Conceived Ofspring: n=560
Adopted Ofspring: n=560
Raised by Biological Parents Ofspring: n=560
Abt SRBI assumed the study qualifcation rate for Sperm Donor
ofspring at 1.3% and expected to collect surveys from the other two groups
in the process of screening for Sperm Donor ofspring.
contact procedures and screening
Respondents from SSIs SurveySpot Web Panel were sent invitations
to participate in the survey. Afer two weeks, non-responders were sent a
reminder email. A total of 670,524 panel members were sent invitations for
this study. Te invitations did not say what the survey would be about.
A total of 48,637 individuals logged into the survey. Of these,
45,765 were classifed as Sperm Donor Ofspring, Adopted, or Raised by
Biological Parents Ofspring. Te table below shows the distribution of
these groups.
Frequency Percent
Sperm Donor Offspring 726 1.49%
Adopted Offspring 1235 2.54%
Bio Parents Offspring 43804 90.06%
Total 45765 94.10%
System Missing 2872 5.90%
48637 100.00%
Not all respondents who logged into the website completed surveys.
Nearly 6 percent dropped out before being classifed as one of the target
groups. Other mid-survey terminations occurred afer the respondent
SER 419
121
classifcation. Of the 726 respondents who were classifed as Sperm Do-
nor ofspring, 574 (79%) completed the entire survey and 562 (77%) were
considered valid afer analyzing para-data: deleted cases included cases
with very short survey lengths or evidence of straight-lining (respondents
entering the same answer for all questions). Most of the mid-survey ter-
minations were the result of being over quota, as the targets for Adopted
and Raised by Biological Parents Ofspring had been met.
ssi survey spot web panel
Te web panel utilized for this study was Survey Sampling Interna-
tionals SurveySpot. Tis panel is built by using 3,400 diferent sources
which employ varied recruitment methods including pop-ups, banners,
and text links. Potential respondents are asked to join the panel based
upon intrinsic interest in survey participation and sharing of opinions.
Panelists are considered active and remain on the panel as long as they
remain active (i.e., complete at least one survey every 6 months). Survey
Sampling utilizes its 30-plus years of sampling expertise when determining
who receives invitations to complete a survey. When selecting the sample
for these surveys, a random methodology was employed.
limitations
In order to recruit a large number of sperm donor ofspring for this
study, we employed a methodology that is very nearly representative,
but not perfectly representative, of 18-45-year-olds living in the United
States in July 2008. Te survey is representative of Americans who signed
up for web-based survey panels, who may difer in unknown ways from
Americans as a whole. We believe this bias is unlikely to be substantial.
Furthermore, many of our analyses are comparative across types of con-
ception, and it is unlikely that selection into the sample would bias these
comparative analyses in any meaningful way. Such a bias would result
only if respondents with diferent origins were systematically more or less
likely to select into the sample for diferent reasons, and we can think of
no reason why that would be the case.
A second limitation of our sampling strategy is that we were forced
to rely on the responses of people who know that they are sperm donor
SER 420
122
ofspring. It is unclear whether sperm donor ofspring who are ignorant
of their origins difer from those who know their origins or from those
raised by their biological or adoptive parent(s). Future studies may wish
to seek to identify adult ofspring of sperm donors through a method
that is not contingent on the respondents knowledge of their origin.
However, there are ethical issues with researchers obtaining access to
this information about adult study participants and not sharing it with
the participants themselves.
Lastly, our data are cross-sectional and respondents are ofen asked
to report retrospectively on their experiences, which could be subject to
some recall bias. Future studies should atempt to follow donor ofspring
prospectively through the life course. Nevertheless, the current study is
a major contribution to our knowledge of sperm donor ofspring. It is
the only data of which we are aware that includes large samples of sperm
donor conceived, adopted, and biological ofspring and focuses on the
experiences of the sperm donor conceived.
SER 421
123
Chris Ayres, Desperate for a baby? Welcome to a Disneyland for the 1.
childless, Times Online, UK, Aug 17, 2005.
2. Assisted Reproductive Technology Success Rates: Preliminary Data,
National Summary and Fertility Clinic Reports (Atlanta: Centers for Disease
Control and Prevention, 2007).
An account from the PBS program American Experience reads as fol- 3.
lows: 1884: In the frst recorded case of artifcial insemination by donor,
Philadelphia physician William Pancoast treats a couples infertility by
injecting sperm from a medical student into the woman while she is under
anesthesia; she gives birth to a boy nine months later. Pancoast never tells
the woman what he has done, and only shares the information with her
husband several years later. See http: / / www. pbs. org/ wgbh/
ameri canexperi ence/ babi es / ti meli ne.
Until the last year or so many U.S. women could choose sperm from 4.
European sperm banks with the Danish sperm bank, Cryos, being a
particularly popular option but an FDA rule enacted several years ago
that banned importation of European sperm for fear of transmiting mad
cow disease has now impacted options in the U.S., as the fnal samples of
European sperm that were in storage in the U.S. have been used up.
See cover at htp://www.fantasticfction.co.uk/k/day-keene/seed-of- 5.
doubt.htm.
Te most well-known studies specifcally on donor conception are 6.
found in the work of Susan Golombok at Cambridge University and her
colleagues. Golomboks papers can be found here: http: / / www.
pps i s. cam. ac. uk/ CFR/ about/ people/ golombok_pa-
pers. php. Her European Study on Assisted Reproduction includes
fewer than 100 donor conceived children who she has followed from
age 2 into adolescence. At this point, only 8.6 percent have been told the
truth about their origins by their parents. Golomboks work sheds light
on the experience of these children, but the children are still minors and
most of the data is based on interviews with the parents and others and
observations of the child, rather than open-ended or extensive interviews
with the children themselves. Based on her studies, Golombok is fairly
sanguine about the efects of donor insemination on children, but she
has not studied a representative sample of adults conceived this way who
Endnotes
SER 422
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know their status and are speaking for themselves. Golombok is recently
partnering with Wendy Kramer of the Donor Sibling Registry to conduct
studies of those who congregate at that message board. Another well-
known scholar is Joanna Scheib of the University of California at Davis
and the Sperm Bank of California (publications here: http: / / www.
thespermbankofca. org/ pages/ page. php? pagei d=9).
Most of her work focuses specifcally on the fairly small and unusual
number of donor conceived ofspring who have open-identity donors (a
method the Sperm Bank of California pioneered in the 1980s). Among
scholars, work by A.J. Turner is also ofen cited. Alexandra McWhinnie,
Patricia Mahlstedt, Lynne Spencer, and Mikki Morrrisete are among
others who have not led large studies, but who have framed questions
and published writings with the donor ofsprings point of view in mind.
Donor ofspring Bill Cordray has maintained an informal database of
survey responses from donor ofspring that now number over 100. Work
by Charlote Paterson at the University of Virginia and Judith Stacey of
New York University, each of whom study the children of gay and lesbian
parents, at times focus on small samples of those conceived through sperm
or egg donation or surrogacy.
Tis argument is developed in Elizabeth Marquardt, 7. Te Revolution in
Parenthood: Te Emerging Global Clash Between Adult Rights and Childrens
Needs (New York: Institute for American Values, 2006).
Te online survey was conducted by Abt SRBI using a sample of 18-45 year 8.
olds provided by Survey Sampling International from an online survey
panel. See the methodological section for details.
An additional 77 persons answered dont know to the question Was 9.
a sperm donor involved in your conception? Tat is, was your mother
artifcially inseminated with donor sperm from a man who was not her
husband? and then responded yes to a follow up question Do you
have any reason to believe a sperm donor was involved in your concep-
tion? Te responses of those 77 persons are not included in the analysis
for this report. (Tere are, however, plans to analyze the responses from
those persons in a next stage of the project.)
All three of these groups can include persons whose parents were mar- 10.
ried, divorced, or never-married. Te adopted persons were adopted
SER 423
125
before they were two years old. Te reason that the sample sizes for the
three groups are somewhat diferent is that the donor conceived group
includes 485 persons who said they knew they were donor conceived and
an additional 77 persons who suspected that they were donor conceived,
totaling 562 persons. Afer consideration we decided to analyze for this
report the responses of the 485 persons who said they knew, and not
merely suspected, that they were donor conceived.
See discussion of the methodology and limitations. 11.
Elizabeth Marquardt interviewed a co-owner of the company Family 12.
Evolutions for an op-ed published in the Chicago Tribune on May 15, 2005.
Tis quotation is drawn from unpublished material from that interview.
Claudia Kalb, A Sperm Biz Overhall, 13. Newsweek, June 2, 2008.
Tese numbers can be found in Table 1 14. (p. 82), which is a summary of the
data (what researchers call the marginal frequencies).
Quoted in Tom Sylvester, Sperm Bank Baby to Meet Test Tube Dad, 15.
National Fatherhood Initiative, Fatherhood Today, page 4, volume 7, issue
2, spring 2003. Sources for the article included Brian Bergstein, Woman
to meet her father a sperm donor, Associated Press, Jan 30 2002; Yomi S.
Wronge, P.A. teen to contact dad who was sperm donor, Mercury News,
Jan 20, 2002; Trisha Carlson, Sperm bank baby to learn donors name,
KPIX Channel 5, Feb 1 2002; and Tamar Abrams, Test Tube Dad, viewed
on www. parents pl ace. com April 1 2002.
I want to know where I come from, BBC News, April 26, 2005, 16.
online edition.
Judith Graham, Sperm donors ofspring reach out into past, 17. Chicago
Tribune, June 19, 2005, online edition
Sherry (Franz) Dale and Diane Allen, 18. Te Ofspring Speak: Report on
the 2000 International Conference of Donor Ofspring (Report to Health
Canada), 13.
Chad Skelton, Searching for their genes, 19. Vancouver Sun (Canada), April
22, 2006.
Knowing true identity completes puzzle, 20. Te Sun-Herald (Australia),
November 3, 2007.
Natasha Pearlman, I feel so betrayed because I dont know who my father 21.
is, Daily Mail (UK), February 8, 2007.
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126
Atributed to [Mia] Lentz, 46, an advertising and marketing executive 22.
in Boca Raton, Fla., quoted in Betsy Streisand, Whos Your Daddy? US
News and World Report, February 13, 2006.
Christine Whipp, Worrying the wound: the hidden scars of donor con- 23.
ception, in Alexina McWhinnie, ed., Who Am I? Experiences of Donor
Conception (Warwickshire, UK: Idreos Education Trust, 2006), 18-19.
Faceless fathers may be identifed, 24. Te Independent, April 24, 2000.
Katrina Clark, My father was an anonymous sperm donor, 25. Washington
Post, December 17, 2006.
See htp://cryokidconfessions.blogspot.com/ 26.
Quotations from donor ofspring not otherwise cited come from interviews 27.
conducted by Elizabeth Marquardt with these persons. For some it was
very important to use their real frst and last name. Others preferred to use
their frst name only. Still others asked for a pseudonymous frst name. If
the frst name is pseudonymous, there are quotations marks around the
name the frst time it is used.
Whipp, 19. 28.
Whipp, 29. 29.
Lynne W. Spencer, 30. Sperm Donor Ofspring: Identity and Other Experiences
(BookSurge Publishing, 2007).
Spencer, 2. 31.
Adult ofspring quoted in Spencer, 47. 32.
Tomoko Otake, 33. Te Japan Times Online, Lives in Limbo, August 28, 2005.
htp://www.familieslikemine.com/advice/0401.php accessed June 21, 34.
2005. Te advice columnist, Abigail Garner, who is supportive of same-
sex parenting, edited the leter from three separate email correspondences
with the same young woman.
Signifcant, p < .001 35.
Signifcant, p < .001 36.
All groups signifcantly diferent from one another, p < .001 37.
Amy Harmon, Hello, Im Your Sister. Our Father is Donor 150, 38. New York
Times, November 20, 2005.
Family Scholars Blog, www.familyscholars.org. 39.
Chad Skelton, Searching for their genes, 40. Vancouver Sun (Canada),
April 22, 2006.
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127
Since most sperm used in Canada comes from the U.S., Canadians can 41.
also take advantage of American registries like Kramers.
http: / / www. cryobank. com/ si bli ng_regi stry2/ faqs1 . 42.
cfm, viewed August 8, 2005.
htp://mates.home.pipeline.com/sibling.html, viewed August 8, 2005. 43.
htp://www.ukdonorlink.org.uk/, viewed August 8, 2005. 44.
I could have more than 300 half siblings, 45. Te Guardian (UK), November
14, 2008.
See transcript of the program titled Misconception, by reporter Tara 46.
Brown, February 22, 2004, Sixty Minutes (Australia).
47. Te Ofspring Speak, 47.
Posted on Family Scholars Blog, April 28, 2005. 48.
Ibid. 49.
Parted at birth twins married, BBC News, January 11, 2008; Unknowing 53.
twins married, lawmaker says, CNN.com/Europe, January 11, 2008; Twins
separated at birth marry without knowing, Te Sun, January 12, 2008.
Indeed, sharing half your genetic make-up with someone could make that 54.
person seem especially familiar and sexually atractive if you did not know
you were related to them. Tis phenomenon, known as genetic sexual
atraction, is discussed in adoption literature and by donor conceived
adults on their message boards.
Donor ofspring diferent from both raised by biological and adopted, 55.
p < .001; adopted and raised by biological not signifcantly diferent,
p = .608
Donor ofspring diferent from both raised by biological and adopted, 56.
p < .001; adopted and raised by biological not signifcantly diferent,
p = .539
Note that adding a family transition variable as a control to the analyses 57.
makes litle diference. For instance, the greater problems experienced by
the sperm donor conceived respondents is not explained by their expe-
riencing more transitions.
In the survey, those from adopted families reported the greatest level of 58.
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128
family of origin afuence. With greater afuence its possible that their
symptoms were more likely to get diagnosed and treated. Recent reports
underscore that the parents of adopted children are particularly likely to
seek out health care for their children. See for example Adoption USA:
A Chartbook Based on the 2007 National Survey of Adoptive Parents, a col-
laborative efort of several agencies within the U.S. Department of Health
and Human Service. But there could be myriad other explanations behind
this fnding as well.
Donor ofspring and adopted signifcantly diferent from raised by bio- 59.
logical, p < .001; adopted and donor ofspring not signifcantly diferent,
p = .617
Donor ofspring signifcantly diferent from adopted and raised by 60.
biological, p <.001; adopted and raised by biological not signifcantly
diferent, p=.094
Figure 3c 61. (p. 117) illustrates the number of family transitions among the
ofspring of heterosexual married parents in all three groups (the donor
conceived, the adopted, and those raised by biological parents). Figure
3c includes divorce (like Figure 4) but includes other family transitions
as well.
Te number of family transitions were determined by the question Did 62.
your family situation change between your birth/adoption and age 16? If
they responded yes, we then inquired about the number of changes (such
as divorce, break up of a cohabiting relationship, remarriage, formation
of a new cohabiting relationship, remarriage spliting up, death, or other)
in the relationship status of each of the one or two parents (i.e., single
mother, heterosexual married couple, lesbian couple, or other) which
earlier in the survey they had stated made up their family structure at
birth/adoption.
Signifcantly diferent, p < .001 63.
See for example a review by Charlote Paterson, Children of Lesbian 64.
and Gay Parents, Current Directions in Psychological Science, vol. 15. no. 5.,
241-4. In Patersons most recent study, drawn from Add Health data, there
were only forty-four such teens whose parents were in such a relationship
and who revealed it to the investigators. Based on that sample, Paterson
and her colleagues concluded that the qualities of family relationships
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129
rather than the gender of parents partners were consistently related to
adolescent outcomes. (p. 242)
Te numbers in the list are ranges based on Table 2 65. (p. 109). Tey do not
match precisely the numbers reported in Table 1 (p. 82) because this list
is based on 414 ofspring who reported the structure of their family of ori-
gin, not the full 485 donor ofspring who knew they were donor ofspring
whose responses are found in Table 1.
Te diference between the donor ofspring of single mothers and the 66.
donor ofspring of heterosexual couples is statistically signifcant.
Te lower number for the ofspring of lesbian mothers is statistically signifcant. 67.
Te numbers for the section below can all be found in Table 2 68. (p. 109).
Given the cell size of the ofspring born to lesbian couples, we cannot say 69.
whether this diference is statistically signifcant.
As Table 3 70. (p. 111) shows, all but the ofspring of lesbian couples can be
said to be statistically signifcant from those raised by biological parents.
Te cell size of those raised by lesbian couples is too small to know whether
the diferences are signifcant.
Both the donor ofspring born to heterosexual parents and those born to 71.
single mothers are signifcantly diferent from the adopted. Te lesbian
mother sample is too small to know.
As Table 3 72. (p. 111) shows, all of the diferences reported in this paragraph
are signifcant, except for those related to the ofspring of lesbian moth-
ers. Due to their cell size we can only speculate about their apparent
diferences.
Lauren Taylor, from Te following DI Ofsprings quotes were distributed 73.
to the delegates at the conference, What About Me?, held at the Royal
Society, London, on March 28, 2000, and organized by Comment on
Reproductive Ethics (CORE), included in Te Ofspring Speak, 91.
Lynne Spencer, from Te following DI Ofsprings quotes were distrib- 74.
uted to the delegates at the conference, What About Me?, held at the
Royal Society, London, on March 28, 2000, and organized by Comment
on Reproductive Ethics, included in Te Ofspring Speak, 91.
David Gollancz, 75. Te Ofspring Speak, 12.
Janice Stevens Botsford, 76. Te Ofspring Speak, 12.
SER 428
130
Barry Stevens on not knowing until afer his fathers death that he had 77.
been conceived by donor insemination, Te Ofspring Speak, 11-12.
Suzanne Ariel, 78. Te Ofspring Speak, 12.
Donor ofspring signifcantly diferent from raised by biological and 80.
adopted, p < .001; adopted signifcantly diferent from raised by biologi-
cal, p < .05. Within the donor conceived, 10 percent (4 out of 39) of the
ofspring of lesbian couples said dont know/not available to this item,
compared to 12 percent of those conceived to single mothers and 5 percent
of those conceived to heterosexual married couples.
Stephen Feldschuh, interviewed on episode Moral Issues of Sperm Dona- 81.
tion for PBSs Religion and Ethics Newsweekly, WNET-TV, 8/25/06, cited
in Naomi R. Cahn, Test Tube Families: Why the Fertility Market Needs Legal
Regulation (New York: New York University Press, 2009), 120.
Joanna Scheib, Adolescents with open-identity sperm donors: reports 82.
from 12-17 year olds, Human Reproduction 20 (2004). 239-252; Joanna
E. Scheib, Maura Riordan, and Phillip R. Shaver, Choosing between
Anonymous and Identity-Release Sperm Donors: Recipient and Donor
Characteristics, Reproductive Technologies 10 (2000): 50; cited in Cahn,
120; Te Sperm Bank of California, Identity-Release Program, www.
thespermbankofca. org/ i drelease. html, cited in Cahn, 118.
Ova and Sperm Donation to be Legalised Croatia. A child conceived 83.
in vitro will have the right to know who their biological parents are at 18,
(http: / / www. j avno. com/ en- croati a/ ova-and- sperm-
donati on- to- be- legali s ed --- croatia_261279)
htp://www.canadiandonorofspring.ca/cdo_DCA_olivia.html 84.
htp://www.unicef.org/crc/crc.htm 85.
David Velleman, professor of philosophy at New York University, writes 86.
that Te Implementation Handbook for the Convention makes clear that
the word parents in this statement refers in the frst instance to biological
parents. See his Persons in Prospect, Philosophy and Public Afairs, vol
36, issue 3, 221-322, summer 2008.
For example, In 2006 it was reported that just one active sperm donor 87.
remained north of the Border, forcing patients to go elsewhere for treat-
ment or join long queues. Te situation has since improved, but both
SER 429
131
NHS and private clinics are still reporting shortages, from Lyndsay Moss,
Warning over critical lack of sperm donors, Te Scotsman, November
12, 2008.
See Laura Witjens, Chair of the National Gamete Donor Trust, com- 88.
ments on egg/sperm donor payment, www. ngdt. co. uk; and see
the HFEAs data at www. hfea. gov. uk/ 3 41 1 . html and www.
hfea. gov. uk/ 3 41 2. html .
See for example Y. Wang and A. Leader, Non-Anonymous (ID-Release) 89.
Donor Sperm is Not the Preferred Choice of Women Who Are Undergoing
Assisted Reproduction, Fertility & Sterility 84, supp. 1 (2005): S204, S205,
cited in Cahn, 122. Others studies and papers include Kristen MacDougall,
Gay Becker, Joanna E. Scheib, and Robert D. Nachtigall, Strategies for
Disclosure: How Parents Approach Telling Teir Children Tat Tey
Were Conceived With Donor Gametes, Fertility & Sterility 87 (2007): 524;
Patricia Hershberger, Susan C. Klock, and Randall B. Barnes, Disclosure
Decisions Among Pregnant Women Who Received Donor Oocytes: A
Phenomenological Study, Fertility & Sterility 87 (2007): 288, 289; and E.
Lycet, K. Daniels, R. Curson, S. Golombok, School-Aged Children of
Donor Insemination: A Study of Parents Disclosure Paterns, Human
Reproduction 20 (2005): 810; ASRM Ethics Commitee, Informing Donor
Ofspring of Teir Conception by Gamete Donation, Fertility & Sterility
81 (2004): 527, cited in Cahn 122-3. More recently, see Early Disclosure
of donor paternity may evince lesser negative responses in ofspring,
http: / / www. i vfnews di rect. com/ ? p=464.
At the Donor Conception Network in the UK one can fnd booklets and a 90.
flm produced by the How to Tell Project. Te booklets are available for
parents of children at four diferent age levels. Tey cover issues including
anxieties about telling; the best age to start telling; language to use for
babies, litle kids, bigger kids, teenagers, and adults; telling if a known
donor has been used, and telling following the ending of anonymity
for donors. In Canada, the Infertility Network has a resource page of
storybooks for children about donor conception. Titles include Just the
Baby for Me, for single mothers by choice to use in telling their children;
How I Began: Te Story of Donor Insemination, a book for 5-8 year olds
produced by an Australian social workers organization; and Sometimes It
SER 430
132
Takes 3 To Make a Baby: Explaining Egg Donation to Young Children. In the
U.S., the Donor Sibling Registry has a FAQs page which includes answers
to questions such as, When is the Best Time to Tell My Child that She
is Donor-Conceived? (Te short answer: Its never too early.)
We are continuing to analyze this data and will report additional fndings 91.
in the future.
Donor ofspring diferent from biological and adopted, p < .001; adopted 92.
not diferent from biological, p = .981
On these four statements, the three groups of donor conceived ofspring 93.
of lesbian couples, single mothers, and heterosexual married couples
had similar responses, as seen in Table 2 (p. 109).
diferent from biological, p < .01
As Table 2 99. (p. 109) shows, all three groups of donor conceived felt similar
in this regard; Donor ofspring diferent from biological and adopted, p
< .001; adopted not diferent from biological, p = .374
Donor ofspring diferent from biological, p < .05; donor ofspring difer- 100.
ent from adopted, p < .001; adopted diferent from biological, p < .01
As seen in Table 2 101. (p. 109), ofspring of lesbian couples appear the least
likely to agree, It is wrong to deliberately conceive a motherless child,
while ofspring of heterosexual married couples are the most likely to
agree. Interestingly, ofspring of lesbian couples appear more likely to
agree, It is wrong to deliberately conceive a fatherless child than they
are to agree with the statement about deliberately conceiving a motherless
child. A litle more than one-third agree of the ofspring of lesbian couples
it is wrong deliberately to conceive a fatherless child, while one-quarter
agree it is wrong deliberately to conceive a motherless child. Te former,
of course, is their own experience.
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133
Donor ofspring not diferent than biological, p = .869; donor diferent 102.
from adopted, p < .05; adopted diferent from biological, p < .05
Ancillary analyses suggest that those donor ofspring who have experi- 104.
enced negative outcomes or report experiences of hurting, confusion,
etc, are about as likely as those who do not report distressing experiences
or outcomes to say they favor the practice of donor conception. Analyses
and reporting of this data will continue.
More of her story can be found here htp://www.rationalist.com.au/ 105.
archive/7576/p23-27_walker.pdf
We are continuing to analyze the data and will publish fndings in the 106.
future.
Donor ofspring diferent from biological, p < .01; donor diferent from 107.
adopted, p < .001; adopted diferent from biological, p < .05
Tere were 156 persons raised by biological parents who were raised 108.
Catholic, 33 percent of them no longer identify as Catholic. Tere were 122
adopted persons who were raised Catholic, 46 percent of them no longer
identify as Catholic. Tere were 174 sperm donor conceived persons who
were raised Catholic, 22 percent of them no longer identify as Catholic.
Te percentages for the adopted and for sperm donor conceived are
both signifcantly diferent from those raised by their biological parents
at p < .05 (two-tailed tests). Te percentage of sperm donor conceived is
signifcantly diferent from adopted at p < .001 (two-tailed tests).
66 percent of the donor ofspring said they were white Hispanic, while 110.
20 percent said they were black Hispanic.
not diferent from biological, p = .559. In probing this fnding, we con-
frmed that our survey research frm sampled nationally and not, say,
with overrepresentation in the Southwest. Also note that the Hispanic
respondents among those raised by adoptive and biological parents
were quite low, which helps to confrm this fnding is likely not due to
a sampling problem.
SER 432
134
We dont know how the donor ofspring and adopted groups answer 112.
questions like these in regard to the one or two biological parents they
might not know. Some might have at least basic information on their
absent biological parents race and ethnicity, while some of the donor
ofspring might be reporting only their heritage through their mothers
side. Still others might know something about the identities of their
absent biological parents or they might have a relationship with them.
See, for example, AlternativeFamilies.org, which has information on 113.
helping lesbians and gay men have children through adoption, foster
care, insemination, and surrogacy; an article by Michele St. Martin who
argues in Donor Decisions: Considering Donor Egg & Sperm that for
infertile couples and single or lesbian women who want to have a child,
donor egg and donor sperm programs ofer an alternative to options
such as surrogacy and adoption (http: / / www. preconcep-
ti on. com/ arti cles/ alternati ve- fami ly- bui ldi ng/
donor- deci si ons - 1 31 2/ ); and Philadelphia Family Prides website,
which says their diverse membership includes families created through
adoption, surrogacy, donor insemination, fostering and heterosexual
relationships, (htp://www.phillyfamilypride.org/).
See for example David M. Brodzinsky, Marshall D. Schechter, and Robin 114.
Marantz Henig, Being Adopted: Te Lifelong Search for Self (New York:
Anchor Books/Doubleday, 1992). Histories and analyses of adoption in
the U.S. and elsewhere include E. Wayne Carp, Family Maters: Secrecy
and Disclosure in the History of Adoption (Cambridge: Harvard Univer-
sity Press, 1998); Katarina Wegar, Adoption, Identity and Kinship: Te
Debate Over Sealed Birth Records (New Haven: Yale University Press,
1997); Adam Pertman, Adoption Nation: How the Adoption Revolution
is Transforming America (New York: Basic Books, 2000); Rita J. Simon
and Howard Altstein, Adoption Across Borders: Serving the Children in
Transracial and Intercountry Adoptions (New York: Roman and Litlefeld
Publishers, 2000); and Barbara Melosh, Strangers and Kin: Te American
Way of Adoption (Cambridge: Harvard University Press, 2002).
To learn more about the varied contemporary experiences of adoptees, 115.
the website of the Evan B. Donaldson Adoption Institute is a good place
to start. See www.adoptioninstitute.org.
SER 433
135
Marquardt would like to thank her colleague Barbara Dafoe Whitehead 116.
for this valuable observation.
Among the donor conceived, ofspring of married heterosexual parents 117.
are the most likely to agree with this statement. See Table 2 (p. 109).
Donor ofspring not diferent from biological, p = .485; donor ofspring 118.
diferent from adopted, p < .01; adopted diferent from biological,
p < .05
It is also possible that parents raising adopted children beneft from having 119.
an equal relationship to the child neither parent is biologically related
to the child while in families that have used donor insemination there
is biological asymmetry; that is, the mother is biologically related to the
child while the second parent is not.
See her many writings including a compilation of her lectures delivered 120.
in 2006 under the auspices of Canadas prestigious Massey Lectures,
found in Margaret Somerville, Te Ethical Imagination: Journeys of the
Human Spirit (Toronto: House of Anansi Press, 2006).
Advocates ofen confate the idea of intentional parenthood with the 121.
presumed good of having wanted children or avoiding unplanned
pregnancy. But the existing data on outcomes for children of unwanted
or unplanned pregnancies is unclear. Te National Campaign to Prevent
Teen and Unplanned Pregnancy cites studies that fnd poorer outcomes
related to cognition and emotional development in young children,
among other factors. Tey also correlate unplanned pregnancy with
future relationship instability of the mother, and they note that, as one
might strongly suspect, most abortions are the result of unplanned
pregnancy. At the same time, the majority of unplanned pregnancies are
found among unmarried women, so outcomes for children of unplanned
pregnancies could be confounded by well-documented outcomes for
children born outside of marriage. See htp://www.thenationalcampaign.
org/resources/pdf/fast-facts-unplanned-key-data.pdf and htp://www.
thenationalcampaign.org/resources/pdf/briefy-unplanned-pregnancy-
among-20somethings-the-full-story.pdf In the legal realm, if advocates
of intentional parenthood want to make their case based on empirical
data, they have a lot more work to do.
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s/ Monte N. Stewart
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DEFENDANT-APPELLES
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Monte N. Stewart
Boise, ID 83713
Tel: (208) 345-3333

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_)
Wn .. LIAM J. DOHERTY, EDWARD F. KOUNESKI, t\ND MARTHA F. ERICKSON
University of Minnesota
Responsible Fathering:
An Overview and Conceptual Framework
This article defines responsible fathering, sum-
marizes the relevalll research, and presents a sys-
temic, ecological framework to organize research
and programmatic work in this area. A principal
finding is that fathering is influenced, even more
than mothering, by contextualj{lctors in the family
and comlmmity.
For more than a century, American society has
engaged in a sometimes contentious debate about
what it means to be a responsible parent. Whereas
most of the cultural debate about mothers has fo-
cused on what, if anything, mothers should do
outside the family, the debate about fathers has
focused on what fathers should do inside the fam-
ily. What role should fathers play in the everyday
lives of their children, beyond the traditional
breadwinner role? How much should they emu-
late the traditional nurtming activities of mothers,
and how much should they represent a masculine
role model to their children? ls fatherhood in a
unique crisis in late twentieth century America
(Blankenhorn. 1995; Doherty, 1997; Griswold,
1993; LaRossa. 1997; Popcnoe. 1996)?
Department of Family Social Science and Children, Youth, and
Families Consortium, University of Minnesota, I 985 Duford
Avenue, St. Paul, MN 55108 (bdohcrty@ochc2.chc.umn.cdu).
Key Wrmls: coparenta/ relationship, jatha.<, j(uha-chi/d rela-
Iirmship, family relation.< am/ dynamics. divorce. pareming.
The recent upsurge of interest in fathering has
generated concern among supporters of \Vomen' s
and mothers' tights that the emphasis on the impor-
tant role of fathers in families may feed longstand-
ing b i ~ e s against female-headed single-parent fam-
ilies, that services for fathers might be increased at
the expense of services for single mothers, tmd that
the profatherhood discourse might be used by the
fathers' rights groups who are challenging custody,
child support, and visitation arrangements after di-
vorce. On the other hand, feminist psychologists
have recently argued for more emphasis on father-
ing and have suggested that involved, nurturing fa-
thers will benefit women as well as children
(Phares, 1996; Silverstein, 1996). Only an ecologi-
cally sensitive approach to parenting, which views
the welfare of fathers, mothers, and children as in-
tettwined and interdependent, can avoid a zero-sum
approach to parenting .in which fathers' gains be-
come mothers' losses.
These cu.ltural debates serve as a backdrop to
the social science research on fathering because
researchers arc inevitably influenced by the cul-
tural context within which they work (Doherty,
Boss, LaRossa, Schumm, & Steinmetz, 1993). In
their recent reanalysis of the historical trends o!'
American ideals of fatherhood. Pleck and Plcck
(1997) sec the emerging ideal of fatherhood in the
late twentieth century as father as equal coparent.
(From 1900 to 1970, the dominant cultural ideal
was the genial dad and sex role model, and from
1830 to 1900, the distant breadwinner.} Research
on fathering, then, has attained prominence in the
Joumal of Maniage and the Family 60 (May 1998): 277-292 277
SER 561
278
social sciences during an era of historically high
expectations of men's involvement in the every-
day lives of their children. Not surprisingly, a
good deal of that research has compared levels of
fathers involvement with mothers' involvement
because mothers have become the benchmark for
norms for fathering (Day & Mackey, 1989).
This post-1970s interest in fathering has been
fueled by the reappraisal of family roles for
women and by unprecedented demographic
changes in the American family. In other words,
scholarly, professional, and public policy interest
in fathering has crystallized during the time that
the foundation or traditional fathering-the physi-
cally present father who serves as the unique fam-
ily breadwinner-has been eroding rapidly. With
more than half of mothers in the work force, with
new marriages breaking up at a rate of 50%, and
with nearly one third of births to single women,
the landscape of fathering has been altered sub-
stantially (Bumpass, 1990; U.S. Bureau of the
Census, 1994a).
Sociological and historical work on fathering
makes it clear that fathering (at least beyond in-
semination) is fundamentally a social construction.
Each generation molds its cultural ideal of fathers
according to its own time and conditions, and
each deals with the inevitable gap between what
LaRossa ( 1988) terms the "culture" of fatherhood
and the "conduct"' of fathers in families. Sociolog-
ical and analyses also make it clear that
fathering cannot be defined in isolation from
mothering, mothers' expectations, and social ex-
pectations about childrearing in the society, and
that these social expectations have been fairly
tluid in the United States in the twentieth century.
LaRossa (1997) has demonstrated how the culture
of fatherhood and the conduct of fathers change
from decade to decade as social and political con-
ditions change.
.In addition to this historical and social con-
structivist perspective, fathering also lends itself to
a systemic framework, which views fathering not
primarily as a characteristic or behavioral set of
individual men or even as a dyadic characteristic
of a father-child relationship, but as a multilateral
process involving fathers, mothers, children, ex-
tended family, and the broader community and its
cultures and institutions. Fathering is a product of
the meanings, beliefs, motivations, attitudes, and
behnviors of all these stakeholders in the lives of
children. Indeed, this article will suggest that fa-
thering may be more sensitive than mothering to
contextual forces , forces that currently create
Journal of Marriage and the Family
more obstacles than bridges for fathers but that
potentially could be turned in a more supportive
direction.
With these historical, social constructionist,
and systemic perspectives as a backdrop, we ex-
amine the concept or responsible fathering, sum-
marize findings from the major areas of research
on responsible fathering, and offer a conceptual
framework to guide future research and program
development. Because of the vastness of the liter-
ature on fathering and the presence of a number
of recent reviews, the review of the literature in
this report is selective rather than comprehensive.
It focuses on major recent work and points out
continuing gaps, such as cultural issues in father-
ing. In some areas. we rely almost entirely on re-
cent reviews by other scholars such as Plcck
( 1997). Our goal is one of synthesis and theory
development rather than comprehensive docu-
mentation.
REsl'ONSJllLF. fATHERING
The use of the term "responsible fathering,"
which was the original language used by the U.S.
Department of Health and Human Services in
commissioning our work, reflects a recent shift by
academics and professionals away from value-
free language and toward a more explicit value-
advocacy approach. "Responsible" suggests an
"ought,'' a set of desired norms for evaluating fa-
thers' behavior. The term also conveys a moral
meaning (right and wrong) because it suggests
that some fathering could be judged "irrespons.i-
ble." The wiilingness to use explicitly moraltctms
reflects a change in the social climate among aca-
demics, professionals, and policymakers, who
until recently embraced the traditional notion that
social science, social policy, and social programs
could be value free. In the late twentieth century,
there is more appreciation of the inevitability of
value-laden and moral positions being part of so-
cial science and social interventions and a greater
willingness to be explicit about values so that they
can be debated openly and their intluence on social
science and policy can be made clear. rather than
being covert (Dohetty, 1995a; Doherty et al., 1993;
Wolfe, 1989). Indeed, there has always been a
strong but implicit undercurrent of value advocacy
.in fathering research, much of it conducted by
men and women interested in promoting more
committed and mnturing involvement by men in
their childrcns lives. Similarly, there has always
been a moral undertone to the focus on fathers'
SER 562
Re.IJJonsible Fathering
deficits that has characterized much of the litera-
ture on absent, "deadbeat," and emotionally unin-
volved fathers (Doherty, 1990). The term "respon-
sible fathering," as we use it, applies to fathers
across all social classes and racial groups, not nar-
rowly to men in lower social classes or minority
groups. Now that value advocacy has become
more explicit in the fathering area (Dollahite,
Hawkins, & Brotherson, 1997), responsible father-
ing needs to be clearly defined. James Levine and
Edward Pitt (1995) have made an important start
in their delineation of responsible fathering. They
write:
A man who behaves responsibly towards his
child docs the following:
He waits to make a baby until he is prepared
emotionally <md financially to support his child.
He establishes his legal paternity il' and when
he docs make a baby.
He actively ~ h r e s with the child's mother in
the continuing emotional and physical care of
their child, from pregnancy onwards.
He shares with the child's mother in the con-
tinuing financial support of their child, from
pregnancy onwards. (pp. 5-6)
Levine and Pitt's elements of responsible fa-
thering have the advamage of referring to both
resident and nonresident fathers, a reflection of the
diversity of fathers' situations. The authors also
assert that commitment to this ethic of responsi-
ble fatherhood extends beyond the father to the
mother, to professionals who work with families,
and to social institutions entmsted with the suppo11
of families. We employ Levine and Pitt's det1ni-
tion in this ruticle, but we narrow our scope to men
who are already fathers; we do not address the
issue of postponing fatherhood.
The developmental backdrop for the discussion
of fathering reflects children's needs for pre-
dictability, nUiturance, and appropriate limit setting
from fathers and mothers, as well as for economic
security and a cooperative, preferably loving rela-
tionship between their parents (Hetherington &
Parke, 1993). Furthermore, the specific needs of
children vary by their developmental stage. Parents
arc required to provide higher levels of physical
caregiving when their children arc infants and
greater levels of conflict management when their
children become adolescents. Although we do not
review the literature on the effects of active father-
ing on children, an assumption behind this arti-
279
de-and our value stance-is that children need
and deserve active, involved fathers throughout
their childhood and adolescence. The prime justi-
fication for promoting responsible fathering is the
needs or children.
RESEARCH ON RESPONSIULE FATHERING
The major areas of research on responsible father-
ing reflect the domains outlined by Levine rutd Pitt
( 1995). with the addition of attention to whether
the father resides with the child. These domains
can be categorized as (a) establishing legal pater-
nity, (b) nonresidential fathers ' presence versus
absence, (c) nonresidential fathers' economic sup-
port for their children, and (d) residential fathers'
level of involvement with their children. There are
not many theoretical models or research studies
that cross over between residential and nonresiden-
tial fathers. Offering such a model is one of the
goals of this article. The review of literature, how-
ever, will be organized by the four research tradi-
tions delineated above. In order to delimit the re-
view, we focus on heterosexual. biological fathers
and not gay fathers, stepfathers, adoptive fathers,
or father surrogates-groups deserving consider-
ably more research and programmatic attention.
Fathers and /.ega/ Paternity
Declaring legal paternity is the sine qua non of re-
sponsible fathering. With legal paternity comes a
variety of economic. social, and psychological
benefits to the child and some degree of protection
of the father's rights. Tangible benefits for the
child include health care if the father is employed,
social security, mandated child support, and armed
forces benefits if the father is in the military.
They also include the intangible benefit of know-
ing one's biological heritage and having a clearer
sense of social identity (Wattenberg, 1993).
Unfortunately, only about one third of non-
mruital births in the U.S. are followed by paternity
adjudication (Adams, Landsbergen, & Hecht.
1994). There is limited research on the reasons,
but they appear to involve lack of information
about the benefits of legal paternity, the dynamics
of the couple relationship, opposit.ion from moth-
ers, cultural issues, social policy barriers, and low
priority actions on the part of social institutions
(Anderson, 1993: Wattenberg, 1993). In a study of
new, unmarried parents, Wattenberg documented
the faulty and incomplete information the young
couples had. Nor were they informed by health
SER 563
280
personnel or social service personnel, who them-
selves had major gaps in their knowledge about the
advantages of paternity determination. What's
more, current institutional practices encourage
unmarried fathers in welfare families to remain
"underground" because the state generally keeps
a substantial portion of the child support the father
pays. If he does not declare paternity, any infor-
mal, under-the-table payments he makes go directly
to the mother and child (Achatz & MacAIIum,
1994).
Anderson (1993) and Wattenberg (1993) also
have explored the ambivalence of the mother and
father themselves about establishing paternity.
Young fathers sometimes feel tricked and trapped
by the mother. and the mother may feel both pro-
tective of the father (not wanting him to be ha-
rassed by authorities) and reluctant to tie herself
to him in the future. Extended family on both
sides may have mixed feelings about legal pater-
nity and father involvement. Social service per-
sonnel, too, have been found to have the same
ambivalence and reluctance to encourage the
mother and father to establish paternity. Recently,
however, federally mandated reforms have re-
quired states to implement programs to promote
the acknowledgment of paternity. The results thus
far have been mixed: Rates of paternity establish-
ment have increased, but paternity is still unac-
knowledged in the majority of cases for reasons
cited in prior studi.es (Sorenson & Turner, 1996).
The available research on the process of estab-
lishing legal paternity supports an ecological
model that emphasizes how contextual forces in
the community combine with mother-father rela-
tionship factors and individual father factors to
create a situation where too many fathers stumble
on the first step of responsible fathering.
Father Presence Versus Absence
After the declaration of paternity, the bedrock of
fathering is presence in the child's life. The two
major structural threats to fathers ' presence are
nonmarital childbearing and divorce. In 1993, 6.3
million children (9% of all children) were living
with a single parent who had never married, up
from 243,000 in 1960 (.4% of all c.hildren). In
terms of percentages of all births, nonmarital
births have risen from 4% of births in 1940 to
31% in 1993: the biggest increases occurred in
the 1970s and 1980s. The nonmarital birth rate
for women over age 20 has increased substantially
since the late 1970s. For teenagers. although the
Joumal o.fJ'yfarriage and the Family
overall birth rate has actually remained steady for
decades, the decision to not marry has led to a dra-
matic increase in the nonmarital birth rate (U.S.
Department of Health and Human Services, 1995).
ln all of
llJ.rir(iag w'ith their n\.ot[grs: It: ft;thers do
n()tlive with the mother and child, their presence
in the child's life is frequently marginal and, even
when active for a while, tends to be fragile over
time. Until recently, studies in this area have been
hampered by small, nonrepresentative samples.
Lerman (1993), using data from a nationally rep-
resentative group of over 600 unwed fathers, found
that about three fourths of young fathers who did
not reside with their children at birth never lived
in the same household with them. About 50% of
these fathers visited their child once a week. but
about. 20% never visited or visited once a year. The
pattern over time was toward less contact as the
ch.ildren got older. There were racial differences
in these findings. however. African American un-
married fathers were more likely to live close to
their children and see them more frequently than
were White and Hispanic fathers. The figures for
fathers who rarely or never visited their children
were as follows: African American (12%), Hispanic
(30%), and White (37%). African American un-
married fathers also had a slightly higher frequency
of support payments.
A number of qualitative studies have docu-
mented how mothers and grandmothers serve as
gatekeepers for the father's presence in the child's
life and how institutional practices create barriers,
particularly for young fathers (Allen & Doherty,
1.996; Wattenberg, 1993). Many of these fathers
relinquish involvement, and many who try to stay
involved face structural and relationship barriers.
Overall, there appears to be a strong negative
effect of nonmarital fathering on the father-child
bond. Furstenberg and Harris ( 1993). reporting on
their 20-year follow-up of new unmarried African
American parents in Baltimore (a group who were
generally representative of African American un-
married parents nationally), found that only 13%
of the young adults reported a strong bond with
their biological father if he had not lived with
them. The figure was 50% for fathers who lived
with the child. These investigators also examined
bonds with stepfathers and other male figures in
the child' s life. Here, too, the tindings were sober-
ing: "Taking all these father figures into account.,
just I% of the children had a strong relationship
with two or more fathers, 30% reported a strong tie
with at least one, and 69% had no father figure to
SER 564
Re.l1>01l.l'ible Fathering
whom they were highly attached" (p. 126). Note
that this study focused on the quality of father-
child bonds among young adult children, not the
frequency of contact.
In more than 25% of nonmarital births, the
parents are cohabiting (U.S. Department of Health
and Human Services, 1995}. In these cases, fathers
arc far more present in their children's lives. How-
ever, studies indicate that cohabiting couples have
high breakup rates, and those who go on to marry
have higher divorce rates (Bumpass, Sweet, &
Cherlin, 1991; DeMaris & Rao, 1992). Therefore,
even when the father lives with the mother of the
child, his ongoing presence in the child's life is
often fragile.
Although the number of nonmarital births has
been increasing, an even greater number of chi.l-
dren (6.6 million) live with a single parent subse-
quent to divorce (U.S. Bureau of the Census,
1994b). In about 90% of cases, these children re-
side with their mothers. Research has documented
a declining presence of noncustodial fathers over
the years after a divorce. One national study of
school-aged children found that 2 years after a di-
vorce about half bad not seen their father for a
year (Furstenberg & Nord, 1985). A more recent
study. using 1990 data from the Survey of Income
and Program Participation, reported that about
one third of divorced fathers did not spend time
with their children in the previous year (Nord &
Zill, 1996). In general , although father involve-
ment after divorce seems to be increasing and
some fathers are quite involved with their chil-
dren after a divorce, the predominant pattern
among noncustodial fathers is one of gradual
withdrawal from their children's lives (Amato &
Rezac, 1994; Seltzer, 1991).
The sequelae of divorce for the quality of father-
child relations is also quite sobering. Zill, Morrison,
and Coiro (1993) followed a large national sample
of children and parents through the young adult-
hood of the children. After adjusting for a variety
of demographic factors and vocabulary test scores,
they found increasing alienation of divorced fa-
thers from their children, measured by the chil -
dren's descriptions of these relationships. Among
18- to 22-year-olds, 65% of those whose parents
had divorced reported a poor relationship with
their father, compared with 29% of those whose
parents had not divorced. The data also showed
poorer relationships with mothers after divorce,
but the effect for fathers was stronger. Remarriage
of one of the parents made things worse: 70% of
children of divorce and remarriage reported a
poor relationship with their father.
281
Much of the research on fathers' involvement
with their children after divorce has focused on
children's well-being. Although some studies
have found that higher levels of father involvement
were associated with greater psychological adjust-
ment among children, other studies, especially
those with nationally representative samples, have
failed to support that conclusion (Furstenberg,
Morgan. & Allison. 1987; Hetherington, Cox, &
Cox, 1982; Guidubaldi. Cleminshaw, Perry, Nas-
tasi, & Lightel, 1986; Kalter, Kloner, Schreier, &
Okla, 1989). A number of scholars who reponed
no effects for father involvement suggested that,
although contact with both parents is desirable in
principle, the benefits of father involvement for
the child may be neutralized when there is signifi-
cant conflict between parents. That is, when there
is a good deal of interparental conflict, higher
contact with the father might create additional
strains on the child, strains that offset the advan-
tages of seeing the father more frequently (Heth-
erington eta!., 1982).
Amato and Rezac ( 1994) tested this hypothesis
dircct.ly with data from the National Survey of
Families and Households. They found that higher
levels of involvement by the nonresidential parent
(mostly fathers), measured by frequency of con-
tacts, were associated with less problem behavior
in children only in the presence of low inter-
parental conllict. In other words, when the parents
got along well, frequent contact of fathers with
their children had positive behavioral outcomes
for the children. When the parents had more seri-
ous conflict, however, high contact between father
and child was associated with worse behavioral
outcomes. This finding, which was statist.ically
significant for boys but fell short of significance
for girls, supports the imponance of a systemic
and ecological model for fathering, rather than a
dyadic model that focuses only on the father-child
relationship. Recent analyses of national data by
Nord and Zill ( 1996) also shed light on the com-
plexities of involvement of nonresidential fathers.
They found that joint custody and voluntary visi-
tation agreements were associated with better
health among adolescents than were sole custody
and court-ordered agreements. Generally, a I.-
though more contact with the nonresident father
was associated with better reports of health. the
status of the parents' divorce agreements was an
important moderating factor.
Overall, it appears that there arc many barriers
to the father's presence in a child's life outside of
a marital context. Residential status alone, of
SER 565
282
course, Clmnot account for this situation. Although
there is a dearth of studies in this area, noncustodial
mothers appear to do a better job of maintaining
presence in their children's lives. For instance,
more noncustodial mothers than fathers Jive in the
same state as their children (U.S. Bureau of the
Census, 1995) and have more contact with their
children than noncustodial fathers do (Amato &
Rezac, 1994). It appears that there arc personal ,
rclational, cultural, and institutional barriers spe-
citic to fathering that inhibit fathers ' presence .in
the lives of children with whom they do not live.
Fathers Payme111 of Child Support
For many policy specialists, the principal concern
with fathering outside of marriage lies with the
payment of child support. The term "deadbeat
dad" was coined to communicate moral indigna-
tion at the number of fathers who do not con-
tribute to their children's economic well-being
after a divorce. The research data arc clear and
consistent on the subject. According to a report
on child support by the U.S. Bureau of the Census
(1995), only 48% of the mothers who are award-
ed child support by the courts receive the full
amount due. The remainder are divided more or
less equally between those who receive partial
payment and those who received nothing. Fmthcr-
more, other research has found that the amounts
awarded and paid are not adequate to support a
child. given mothers' often low incomes, even if
the full amounts are forthcoming (Renig, Chris-
tensen, & Dahl, I 991 ).
This economic struggle is even more common
for nonmarital childbearing than for postdivorce
situations, especially when fathers have lost con-
tact with their children (Lerman. 1993). In 1993,
38% of children living with divorced mothers, but
66% of those living with never-married mothers,
were living below the poverty line, compared with
I 1% of children living in two-parent families
(U.S. Bureau of the Census, J994b). Only 27% of
never-married custodial mothers have a child sup-
port award (U.S. Bureau of the Census. 1995).
Because many children born to never-married par-
ents have not had legal paternity established. the
prospects of establishing awards for these chil-
dren arc limited.
Researchers have examined factors in the non-
payment of child support by fathers. One important
predictor is having joint custody or visitation
privileges or both. Fathers with these ammgcments
pay all or part of child support more often than
Joumal of Marriage and the Family
those who do not (79% vs. 56%; U.S. Bureau of
the Census, 1995). When asked about their lack
of economic support, many fathers point to re-
sentment toward mothers for misusing the funds
and for withholding the children from the father
(Furstenberg. Sherwood, & Sullivan, 1992; Kur-
dek. 1986). Indeed, studies have documented that
more frequent contact is associated with more
child support (Seltzer, I 991 ). Similarly, a tug-of-
war over visitation and other contacts with chil-
dren is associated with lower child support pay-
ments (Dudley, 1991; Sel tzer, Schaeffer, &
Charng, I 989).
Researchers and policymakers have tended to
assume that the failure of noncustodial parents to
provide economic suppon is primarily a problem
specific to fathers. Without studies of noncustodial
mothers' child support , many assumed that non-
custodial mothers would be better payers of child
support in the same way that they maintain more
contact with their nonresidential children. This
appears not to be the case. The most recent U.S.
Bureau of the Census ( 1995) report on child sup-
port offered the first national data on child sup-
port payments by noncustodial mothers, as well
as fathers. The tindings showed that noncustodial
mothers, like noncustodial fathers, do not pay all
the child support that is owed. Custodial fathers
receive about 53% of the child support owed, and
custodial mothers receive about 68%. Slightly
more than half of the noncustodial fathers (52%)
and less than half of the noncustodial mothers
( 43%) pay all of \\'hat they owe. Mothers' nonpay-
ment cannot be dismissed as stemming from their
incomes being lower than the incomes of fathers
because child suppon awards by the court are cal-
ibrated partly according to income.
These findings of nonsuppmt by noncustodial
mothers suggest. that there is something in the
structure of nonresidential parenting, rather than
in the culture of fatherhood , that is the principal
inhibitor of economic support for children outside
of marriage. Strucmral aspects of nonresidential
parenting that may inhibit economic support
might include having to send funds to an ex-spouse
or to an ex-partner, having to provide economic
support in the absence of day-to-day contact with
one's children, and having no intluencc over how
child support funds arc spent. Because there are
far more noncustodial fathers than noncustodial
mothers, the greater social and policy problem is
the lack of paternal support. But the solutions
should reflect the possibility that there arc inher-
ent difficulties in paying money to an ex-spouse
SER 566
Responsible Fatherin!?
or to an ex-partner when a parent docs not live
with, and thus does not have daily contact with,
his or her children.
Residemial Father Involvement with Children
A striking aspect of research on father involve-
ment with the residential children is its emphasis
not on the traditional responsibility of the father
for economic support, but on the father's face-to-
face interaction with his child in the family set-
ting. However, it is clear that the quality of fathers'
interactions with their children is tied to the fa-
ther"s success, real or perceived, as a breadwinner.
The classic studies documenting this phenomenon
are reports by Glen Elder and colleagues on how
unemployment during the Great Depression af-
fected the quality of father-child relations for men
who became unemployed or who perceived them-
selves as less than adequate prov.iders. These men
increased the quantity of time with their children
but showed decreased parenting quality through
more arbitrariness and rejecting behaviors. Elder
and colleagues found that the impact of unemploy-
ment on fathering was greater than on mothering,
a finding replicated by other studies as well
(Elder, Likcr, & Cross, 1984; Elder, Van Nguyen,
& Caspi, 1985; McLoyd, 1989). Smdies with
more recent cohorts of fathers have shown the
same results and have emphasized that the father' s
perception of his financial situation, even more
than his actual situation, influenced his fathering
behavior (Harold-Goldsmith, Radin, & Eccles,
1988; La Rossa & Reitzes, 1993 ).
1t appears that feeling like a failure in the
breadwinning role is associated with demoraliza-
tion for fathers, which causes their relationships
with their children to dcteriomte (McLoyd, 1989).
This phenomenon has particular relevance for
African American fathers and other fathers of
color, who often face serious barriers to success in
the provider role, with deleterious consequences
for the ability to father (McLoyd, 1990; Taylor,
Leashore, & Toliver, 1988). At a conceptual level,
this connection between fathering and breadwin-
ning demonstrates the importance of taking an
ecological approach to fathering (Allen & Con-
nor, 1997).
As for research on the kinds of father involve-
ment inside the home. early studies on father-
child interactions were dispersed into a variety of
content categories such as warmth, control, sex
role modeling, playfulness, and independence
training. Lamb, Pleck, Charnov, and Levine
283
(1985) then introduced the content-free dimen-
sions of paternal engagement (direct earegiving,
leisure, or play), patemal accessibility (availability
to the child), and paternal responsibility (knowing
what the child needs and making decisions about
how to respond). Subsequently, research began to
focus on the extent of paternal involvement in
these three domains (especially the first two, be-
cause responsibility proved hard to operational-
ize). In addition to examining fathers' absolute
levels of involvement with their children, re-
searchers also eoncemed themselves with mea-
suring the proportion of the father's involvement
to the mother's involvement and assessing the
predictors and child outcomes of different levels
of paternal involvement with children of different
ages.
Lamb and Pleck also introduced an often used
model of the determinants of father involvement:
motivation, skills, social support, and institutional
practices (Lamb. l987a; Lamb et at., 1985). They
proposed that optimal father involvement will be
forthcoming when these four factors arc pres-
ent-that is, when a father is highly motivated,
has adequate parenting skills, receives social sup-
port for his parenting, and is not undermined by
work and other institutional settings.
Recently, the literature on residential father in-
volvement has been comprehensively reviewed
and analyzed by Plcck (1997) for the third edition
of Lamb' s classic book, nze Role of the Father in
Child Developme/11. The following summary relies
heavily on Pleck's review.
Pleck' s (1997) summary of studies during the
1980s and 1990s indicates that fathers' engage-
ment (in proportion to mothers) is currently some-
what over 40%, and their accessibility is nearly
two thirds that of mothers. (This indicates a level
of engagement that is less than half of mothers'
level; 100% means a level of involvement equal
to mothers.) These figures are higher than those
found in studies during the 1970s and early
1980s-by about one third for engagement and
one half for accessibility.
As for absolute levels of engagement and ac-
cessibility (distinguished from the proportion of
mother's involvement), Pleck (1997) reports that
the age of the child and the day of the week were
important factors in the available studies. For ex-
ample, McBride and Mills ( 1993), using a guided
interview to determine time of activities. found
that paternal engagement with young children was
from 2.0 to 2.8 hours per day, with 1.9 hours on
weekdays and 6.5 hours on weekends. According
SER 567
284
to Pleck's review, hours with adolescents tend to
be lower. U.S. studies show a range from .5 to 1.0
hour on weekdays and from 1.4 to 2.0 hours on
Sundays. Fathers spent more time with sons than
with daughters. Accessibility estimates arc higher
across a number of studies, ranging from 2.8 to 4.9
hours per day with younger children and 2.8 hours
per day with adolescents (Pieck, 1997). Pleck
notes that these well-documented amounts of time
arc markedly different than the figure of 12 minutes
per day that is often cited in the media.
The best data on paternal accessibility arc de-
rived from Federal surveys of child-care arrange-
ments of employed mothers. These studies indicate
that fathers arc a significant source of primary
child care when mothers arc working outside the
home. Fathers arc as common a source as child-
care centers and family day care homes. Twenty-
three percent of families with a working mother
have a father who serves as the primary parent
while the mother works. These figures arc up sub-
stantially from the 1970s. although recent find-
ings indicate that fathers' involvement as primary
caregivers changes in response to the larger U.S.
economy and the availability of jobs (U.S. Bureau
of the Census, 1996).
Overall, Plcck ( 1997) concludes that, in keep-
ing with the shift toward a cultural ideal of the
highly involved, coequal parent, there is evidence
of the increasing engagement, accessibility, and re-
sponsibility of fathers in the lives of their children
over the p ~ t 20 years. However, there remains a
large gap between fathers' levels of involvement
and mothers' levels. Research on child and so-
ciodcmographic predictors of residential fathers'
involvement may be summarized from Plcck"s re-
view as follows: Fathers tend to be more involved
with their sons than their daughters, particularly
with older ch.ildren. Fathers are less involved with
older children than younger children. although the
decline of fathers' involvement as children get
older is proportionately less than the decline in
mothers' involvement. Fathers with larger num-
bers of children arc more involved, although the
research in this area is somewhat mixed. Fathers
are more involved with firstborn than later-born
children and with infants born prematurely and
who have difficult temperaments; these trends are
true for mothers as well. Fathers' socioeconomic
characteristics and race and ethnicity have not
been found consistently related to their involve-
ment with their children.
Theory and research on residential fathers' in-
volvement with their children have not explicitly
used the framework of responsible fathering, al-
though this value-advocacy position comes through
in the literature. Indeed, engagement, accessibility,
and responsibility arc ways to opcrationalize
Levine and Pitt ' s ( 1995) notion of responsible fa-
thering as involving "continuing emotional and
physical care of their child" (p. 5). Unresolved is
the issue of the utility of comparisons between
mothers' and fathers' levels of involvement with
children. In much of the literature on fathers, the
behavior of mothers is the benchmark for evalua-
tion (Levine, 1993). This leads to what. feminist
psychologist Vicky Phares ( 1996) termed a "matri-
ccntric" approach to parenting research, family
therapy, and parent education, in which mothers arc
considered the standard parent and fathers arc either
ignored or studied for how they differ from mothers
or how they neglect or abandon children. What is
needed is a systemic, ecological approach to parent-
ing in which the behaviors and beliefs of children,
fathers, and mothers arc viewed within an interde-
pendent web of personal, relational, and community
intluences (Bateson, J 972; Bronfcnbrenner, 1979;
Park, 1996).
INFLUENCES ON FATHERING:
A CONCEPTUAL MODEL
The fathering literature has been long on empiri-
cal studies and shon on theory. Researchers mostly
have adapted concepts from social sciences to fit
their particular area, but work is beginning on
overarching conceptual frameworks to guide re-
search and program development. In his review of
theory in fathering research, Marsiglia ( 1995)
mentions life course theory (which emphasizes
how men's experience of fatherhood changes
with life transitions), social scripting theory
(which emphasizes the cultural messages that fa-
thers internalize abont their role), and social iden-
tity theory (which focuses on how men take on
the identity of a father in relation to their other so-
cial roles). Hawkins, Christiansen, Sargent, and
Hill (1995), Hawkins and Dollahitc (1997). and
Snarcy ( 1993) have used Erik Erikson's develop-
mental theory in their work on how fathering can
promote generativity among adult men. Other
scholars have explored the utility of economic
theories to understand fathers' decisions to invest
in, or withdraw from, their children (Becker,
1991).
The most specific conceptual model frequently
used in the fatherhood literature is Lamb's and
Plcck's four-factor model of father involvement,
SER 568
Fathering
which is not explicitly grounded in a broader the-
ory such as Erikson' s theory or social identity
theory. (Sec Lamb ct al., 1985.) Lamb and Plcck
proposed that father involvement is determined
by motivation, skills and self-confidence, social
suppott, and institutional practices. These factors
may be viewed as additive, building on one an-
other, and as interactive, with some factors being
necessary prior to others. For example, motiva-
tion may be necessary for the development of
skills. Ihingcr-Tallman, Pasley, and Buchler
(1995) proposed an eight-factor model of media-
tors bet\vecn father identity and actual involvement
after divorce: mother's preferences and beliefs,
father's perception of mother's parenting, father's
emotional stability, mother's emotional stability,
sex of child, coparental relationship. father's ceo-
nomic well -being. father's economic security, and
encouragement from others . Recently, Park
(1996) articulated a systems modc.l of residential
father involvement that includes individual, family,
extrafamilial, and cultural influences.
Based on the research literature, prior theoreti-
cal work on fathering, and the systemic ecological
orientation described earlier, we present a concep-
tual model of influences on responsible fathering.
(See Figure 1.) Unlike prior work, the model is in-
tended to include fathering inside or outside mar-
riage and regardless of coresidencc with the child.
The focus is on the factors that help create and
maintain a father-child bond. The model attempts
285
to transcend the dyadic focus of much traditional
child development theory by emphasizing t1rst the
child-father-mother triad and then larger systems'
influences.
The model highlights individual factors of the
father, mother, and child; mother-father relation-
ship factors; and larger contextual factors in the
environment. Within each of these domains. the
model outlines a number of specific factors that
can be supported by the research literature. The
center of the model is the interacting unit of child,
father, and mother, each formulating meanings
and enacting behaviors that influence the others.
The three arc embedded in a broader social con-
text that affects them as individuals and affects the
quality of their relationships.
We arc particularly interested in highlighting
factors that pertain to fathers because one of the
goals of this article is to guide father-specific re-
search, program development, and public policy.
All of the factors in the model affect the mother-
child relationship, well, because they arc generic
to parenting (sec Belsky, 1984). but many of them
have particular twists for fathers. Because theory
and research on parenting so often have been de-
rived from work on mothers, it seems pmticuhuly
important to illuminate the distinctive influences
on fathering. The arrows point to the father-child
relationship, in particular to the four domains of
responsible fathering covered in this review-pater-
nity, presence, economic support. and involvement.
PtGl/RE I. fNfll/ENCES ON RESPONSIBLE FAHIERING: A CO!'<CEPTUAL MODEL
Contextual Factors
Institutional Practices
Employment Opportunities
Economic Factors
Father Factors
Role Identification
Knowledge
Skills
Race or Ethnlclty Resources and Challenges
Cultural
Commitment
Psychological Well-Being
Rotations with Own Father
Employment Characteristics
Residential Status
Coparental Relationship
Marital or Non marital Status
Dual vs. Single Earner
Custodial Arrangement
Relationship Commitment
Cooperation
Mutual Support
Conflict
Social Support
Child Factors
Attitude toward Father
Behavioral Difficulties
Temperament
Gender
Age
Developmental Status
Mother Factors
Attitude toward Father
Expectations of Father
Support of Father
Employment Characteristics
SER 569
286
Although the model can depict fathers' indirect
influence on their children through their support
for the mother, the focus here is on direct father-
child interaction. And although the influences de-
picted in the model also can be viewed as inlluenc-
ing the father directly. we prefer to focus on the
effects on father-child relations because enhancing
those relations and, therefore, the we.ll-being of
children is the ultimate goal of programs for fathers.
The research reviewed for this artic.le supports
the notion that father-child relations are more
strongly influenced than mother-child relations by
three of the dimensions of the modd: the coparental
relationship, factors in the other parent, and larger
contextual factors.
Copareutal Relationship
A number of studies have shown that the quality
of father-child relations both inside and outside
marriage is more highly correlated with the quality
of the coparental relationship than is true for the
mother-child relationship (Belsky & Volling, 1987;
Cox, Owen, Lewis, & Henderson, 1989; Feld-
man, Nash, & Aschenbrenner, 1983; Levy-Shiff
& Israelashvili, 1988). Futhers appear to withdraw
from their child when they are not getting along
with the mother, whereas mothers do not show a
similar level of withdrawal. This is one way LO
understand the tendency of fathers to remove
themselves from their children's lives after a
breakup with the mother, especially if they have a
negative relationship 'Nith the mother (Ahrons &
Miller, 1993 ). As Furstenberg and Cherlin (1991)
have asserted, for many men, marriage and parent-
hood are a "package deal." Or one might say that
in American culture, a woman is a mother all of
her life, but a man is a father if he has a wife. Fur-
thermore, if he h ~ a wife but docs not get along
with her, he may be present as a futher, but the
quality of his relationship with his children is apt
to suffer.
One reason that fathering is particularly sensi-
tive to the rnarital or coparental relationship is
that standards and expectations for fathering ap-
pear to be more variable than t h o ~ e for mothering.
There is more negotiation in families over what
fathers will do than over what mothers will do and
hence more dependence among fathers on the
quality and outcome of those negotiations (Back-
ell, 1987). As Lewis and O'Brien (1987) state.
men have a less clear "job description'' as fathers
than women do as mothers. Therefore, fathers'
behavior is strongly influenced by the meanings
Joumal of Marriage and the Family
and expectations of fathers themselves, as well as
mothers, children, extended family, and broader
cultural institutions.
One of the most sensitive areas of research on
fatheting is the importance of fathers being mar-
ried to the children's mothers. Because many fa-
thers are not married to the mother, it can seem
prejudicial to these men and their children-and
perhaps to single-parent mothers-to emphasize
the importance of marriage. On the other hand, an
implication of our review of the research and our
conceptual framework is that, for most American
heterosexual fathers, the family environment most
supportive of fathering is a caring, committed,
and collaborative marriage. This kind of marriage
means that the father lives with his children and
has a good partnership with their mother. These
arc the two principal intrafamilial determinants of
responsible fathering.
Some of the controversy over the role of mar-
riage in responsible fathering can be circumvented
by specifying the quality of the marriage, as we
have done. It is the quality of the marital process,
rather than the legal or coresidential status, that
most affects fathering. One might argue, then,
that being married is not important because co-
habiting couples could have the same qualities of
relationship. Although, in principle, this is true,
the best national research on cohabitation indi-
cates that cohabitation is a temporary arrange-
ment. for most heterosexual couples: they eventu-
ally either marry or break up (Bumpass et al.,
1991). We conclude that, in practice, the kind of
mother-father relationship most conducive to re-
sponsible fathering in contemporary U.S. society is
a caring. committed, collaborative marriage. Out-
side of this ammgement, substantial barriers stand
in the way of active. involved fathering.
Mother Factors
Among extemal influences on fathering. the role
of the mother has particular salience because
mothers serve as partners and sometimes as gate-
keepers in the father-child relationship, both inside
and outside marriage (De Luecie, 1995). Mother
factors in the conceptual model, of course, interact
with the coparental relationship because the moth-
er's personal feelings about the father iniluence the
copmcntal relationship. But. there is also evidence
that, even within satisfactory marital relation-
ships, a father's involvement with his children,
especially young children, is often contingent on
the mother's attitudes toward, expectations of,
SER 570
Responsible Fwhering
and support for the father, as well as the extent of
her involvement in the labor force (De Luccic,
1995; Simons, Whitbeck, Conger, & Melby.
1990). Marsiglia (1991), using the National Sur-
vey of Families and Households data set, found
that mothers' characteristics were more strongly
cmTelated with fathers' involvement than fathers'
own characteristics were. Indeed, studies have
shown that many mothers, both inside and outside
marriage, arc ambivalent about the fathers' active
involvement with their children (Baruch & Bar-
nett. 1986: Cowan & Cowan, 1987). Given the
powerful cultural forces that expect absorption by
women in their mothering role, it is not surprising
that active patemal involvement would threaten
some women's identity and sense of control over
this central domain of their lives. The evolution
of a social consensus on responsible fathering.
therefore. will necessarily involve a consensus
that responsible mothering means supporting the
father-child bond.
Contexlllal Factors
Research demonstrates the particular vulnerability
of fathering to contextual and institutional prac-
tices-from the establishment of legal paternity to
the greater impuct of unemployment on futhcring
than on mothering. Lack of income and poor occu-
pational opportunities appear to have a particularly
negative effect on fathering (Thomson, Hanson.
& McLanahan. 1994). The prevalence of the aban-
donment of economic and psychological responsi-
bilities among poor. unemployed men and among
other men who undergo tinancial and employment
crises is partly a function of the unique vulnera-
bility of fathering to perceived success in the ex-
ternal environment (Jones, 1991; McLoyd, 1989).
This analysis suggest-; that fathering is especially
sensitive to changes in economic forces in the
work force and marketplace and to shirts in public
policy. It also suggests that fathering suffers dis-
proportionately from negative social forces, such
as racism. that inhibit opportunities in the environ-
ment. McLoyd ( 1990). in a review and conceptual
analysis of economic hardship in African Amcri-
cun families, describes how poverty and racism
combine to create psychological distress, which
is, in turn. associated with more negative parent-
ing styles and more difficulty in the coparental re-
lationship.
Our conceptual model also depicts the positive
contribution of ethnic and culturul factors to father-
ing. One aspect of responsible fathering, that of
2H7
economic support, is nearly universally expected
of fathers by their cultures (Lamb, 1987b ). La-
Rossa ( 1997), in his historical analysis, has
demonstmted how changing cultural expectations
in the first part of the twentieth century led to
more nurturing father involvement in the U.S.
Allen and Connor (1997) Jmve examined how
role flexibility and concern for children in the
African American community create opportunities
for men to become involved in surrogate ti1thcr re-
lationships with children who lack day-to-day
contact with their biological fathers. Unfortunately,
there has not been much empirical research that
examines fathering in its cultural context, using
representative samples of fathers to explore how
cultural meanings and practices influence fathers'
beliefs and behaviors.
The final contextual factor in the model is so-
cial support, which Belsky (1984) emphas.ized in
his theoretical model of parenting and which
McLoyd ( 1990) documented as a crucial factor in
diminishing the negative effects of poverty on
parenting behavior. However, most of the research
on social support specifically for fathers has fo-
cused on mothers as sources of social support.
Pleck ( 1997) reviewed the limited research on ex-
trafamilial social support for fathering and found
the studies skimpy and inconsistent, except for
the pattern that highly involved fathers tend to en-
counter negative attitudes from acquaintances, rel-
atives, and fellow workers. Clearly, there is a need
for ::;tudics that examine the sources and influ-
ences of social support on fathering, particularly
the role of other fathers.
From the perspective of both the contextual fac-
tors and the mother factors discussed thus far, fa-
thering can be conceptualized as a more contextually
sensitive process than mothering is. Not that moth-
ering is not also contextually sensitive, but the cul-
tural norms arc stricter on the centrality and en-
durance of the mother-child dyad, regardless of
what is happening outside that relationship. Father-
child relations, on the other hand, are culturally de-
fined as less dyadic and more multilateral, requiring
a threshold of support from inside the family and
from the larger environment. Undem1ining from the
mother or from a social institution or system may
induce many fathers to retreat from responsible fa-
thering unless their own individual level of commit-
ment to fathering is quite strong.
This point about the ecological sensitivity of
fathering is a principal conclusion of this article.
It suggests that fathering programs and policy ini-
tiatives that focus only on fathers will benefit
SER 571
288
mainly fathers who already have a suppm1ivc so-
cial and economic environment. Fathers whose
context is less supportive-for example, fathers
who do not live with their children, who have
strained relationships with the mother, or who arc
experiencing economic stress-will need more
extensive and multilateral efforts to support their
fathering.
Child Factors
Individual child factors arc included in the model
for completeness, but the child factors studied in
the research literature do not appear to be as im-
portant as the other dimensions in influencing fa-
thering. Fathers do appear to find it easier to be
more involved with their sons, especially older
sons, presumably because they identify with them
and arc more comfortable communicating with
them (Marsiglia. 1991). Most of the other child
factors. such as age, appear to influence mothers as
much as fathers , although Larson (1993) ami Lar-
son and Richards ( 1994) have documented how
fathers withdraw more from parent-adolescent
conflict than mothers do. More research is needed
on the influence of the child's temperament and
developmental status on relations with nonresi-
dential fathers. Similarly, research is needed on
how the child's beliefs about father involvemcm
influence fathers' and mothers' expectations and
behavior.
Mother-Child Relationship Factors
We incluue this domain for theoretical complete-
ness, but we could find no research directly exam-
ining how the father-child relationship is affected
by the rnother-ch.ild relationship. Such effects
may be tapped indirectly through other dimen-
sions in the model , such as the mother's attitudes
toward the father's involvement with the child.
For example, a close mother-child bond, combined
with an ambivalent maternal attitude toward pa-
ternal involvement, might lead to less closeness
of the father than a situation in which a mother
had the same attitude but, herself, was less close
to the child.
Father Factors
Fathers' role identification, skills, and commit-
ment arc important influences on fathering
(Baruch & Barnett, 1986; Ihinger-Tallman et a!.,
1995; Pleck, 1997). These three appear to fluctu-
Journal and the Family
ate from low to high levels along with a number
of interpersonal and contextual factors. such as the
mother's expectations and the father's resiuential
status with his children (Marsiglia, 1995; Ihinger-
Tallman et at.. 1995). In American culture, fathers
arc given more latitude for commitment to. identi-
fication with, and competence in their parental
role. This latitude brings with it the price of confu-
sion for many fathers about how to exercise their
roles (Daly, 1995).
The variability of the individual father factors
suggests two important implications of our con-
ceptual model: that the positive support from
mothers and the larger context can move men in
the direction of more responsible parenting even
in the face. of modest personal investment, and
that strong father commitment, knowledge, and
skills arc likely to be necessary to overcome neg-
ative maternal, coparental. and contextual influ-
ences . This latter point is similar to Lamb' s
( 1987a) hypothesis that high levels of father moti-
vation can override institutional barriers and the
lack of social support.
As for the father's experience in his own family
of origin, some research suggests that the father's
relationship with his own father may be a factor-
either through identifying with his father or com-
pensating for his father's lapses-in contributing
to his own role identification. sense of commit-
ment, and self-efficacy (Cowan & Cowan, 1987;
Daly, 1995). Snarey (1993), in a longitudinal
study, documented the role of multigenerational
connections between fathers.
The final father factors, psychological well-
being and employment characteristics. have been
studied extensively. Research examining psycho-
logical adjustment and parenting quality consis-
tently shows a positive relationship between father.;'
(and mothers') psychological well-being and their
parenting attitudes and skills (Cox ct al., 1989;
Levy-Shiff & lsraclashvili, 1988; Plcck, 1997).
The research on job loss and economic distress
generally has examined declines in psychological
well-being as mediating factors leading to poorer
fathering (Elder et al., 1984; Elder ct al., 1985;
Jones, 1991 ). And fathers' work situations have
been shown to have mixed relationships with in-
volvement with chi ldren. Specific work schedules
are not strongly related to involvement, but
greater flex time and other profamily practices arc
associated with more father involvement (Picck.
1997). Indeed, consistent with other research on
fathering, mothers' employment characteristics
arc more strongly associated with fathers in-
SER 572
Responsible Fathering
volvement than fathers' employment characteristics.
When mothers are employed, fathers' proportionate
share of parenting is greater. although studies arc
inconsistent about the absolute level of father in-
volvement (Picck, 1997).
Conceptual 01erview
The conceptual model outlines multiple factors that
int1uence fathering, from individual and relational
to contextual. The factors can be viewed as additive.
For example. low identification with the parental
role, combined with low expectations from the
mother, would be strongly associated with low in-
volvement of the father in both residential and non-
residential contexts. High identification with the
parental role, combined with high expectations
from the mother, would lead to greater father in-
volvement in any residential context.
The factors in the model also can be viewed as
interactive. For example, high role idcntilication
and good employment and income might be sufti-
cient to offset low expectations from the mother.
Similarly, not living with the child could be offset
by the father's strong commitment to his children
and the suppmt of the mother. And strong institu-
tional support through public policies could miti-
gate unmarried fathers' and mothers' reluctance
to declare paternity.
Although the conceptual fnunework is intended
to apply to the four domains of responsible father-
ing (paternity. presence, economic support, and
involvement), most of the research has focused on
one or another of these areas. Indeed, the bulk of
the empirical research has been on father involve-
ment. Researchers have tended to assume that
economic factors uniquely influence economic
support and that father factors uniquely influence
father involvement. Putting a range of factors into
one model challenges researchers to examine how
all the factors might influence all the domains of
responsible fathering. We acknowledge that some
of the model arc likely to intluence
some aspects of fathering more than others.
Finally, the model should be seen as depicting
a dynamic set of processes, rather than a set of
linear, deterministic intlucnces. Systemic, ecolog-
ical models run the risk of reducing the target be-
havior-in this case, responsible fathering-to a
contextually detem1ined phenomenon stripped of
individual initiative and self-determination. We
want to emphasize the pivotal role of fathers,
themselves, in appropriating or discarding cultural
and contextual messages, in formulating a father-
289
ing identity and developing fathering skills with
their own children, in working out their feelings
about their own fathers, and in dealing collabora-
tively with their children' s mother. The social
construction of fatherhood is an evolving creation
of all stakeholders in the lives of children, and
contemporary fathers have a central role in this
creation. The active construction of fathering by
fathers, themselves, is not a prominent theme in
the research literature, although it is crucial to
programs that work with fathers. More qualitative
research is needed to explore the kinds or identity
development and social negotiation that constitute
the experience of fathering.
CoNCLUSioN
This article delineates a conceptual model of influ-
ences on fathering that can serve as a stimulus for
future research, programming, and policy develop-
ment. The main premise, supported by a variety
of studies, is that fathering is uniquely sensitive to
contextual influences, both interpersonal and envi-
ronmental. Fathering is a multilateral relationship,
.in addition to a one-to-one relationship. A range
of influences-including mothers' expectations
and behaviors, the quality of the coparental rela-
tionship, economic factors. institutional practices.
and employment opportunities-all have poten-
tially powerful effects on 11tthciing. These contex-
tual factors shape the major domains of responsi-
ble fathering discussed here: acknowledgment of
paternity, willingness to be present and provide
economic support, and level of involvement with
one's children. When these influences are not
supportive of the father-child bond, a man may
need a high level identification with the father
role, strong commitment, and good parenting
skills to remain a responsible father to his chil-
dren, especially if he does not live with them.
This review and conceptual model deal with
factors that promote active, involved fathering,
not with the effects of that kind of fathering on
children. (See review by Pleck, 1997.) Nor do we
take a position on whether there arc essential
characteristics or fathering versus mothering or
whether having parents of two genders is neces-
sary for the well-being of children. The growing
literature on gay and lesbian parenting suggests
that these kinds of questions are more complex
than many scholars assumed in the past (Patter-
son. 1992; Patterson & Chan, 1997). However. it is
not necessary to resolve these issues in order to
address the factors that enhance and inhibit the
SER 573
__)
290
parenting of men in the role of father in the late
twentieth century.
A potentially controversial conclusion of this
article is that a high quality marriage is the opti-
mal context for promoting responsible father-
hood. This position moves opposite the trend in
contemporary family studies to disaggregate mar-
riage and parenting. We do not suggest that men
cannot parent adequately outside this context or
that children must be raised in a married house-
hold in order Lo grow up well adjusted. However.
we believe that the research strongly indicates
that substantial barriers exist for most men's fa-
thering outside a caring, committed, collaborative
marriage and that the promotion of these kinds of
enduring marital partnerships may be the most
important contribution to responsible fathering in
our society.
An encouraging implication of this systemic.
ecological analysis is that there are many pathways
to enhancing the quality of father-child relation-
ships. Fathering can be enhanced through pro-
grams and policies that help fathers relate to their
coparent. that foster employment and economic
opportunities if needed, tim change institmional
expectations and practices to better support fathers.
and that encourage fathers' personal commitment
to their children.
NOT I'.
An earlier version of this article prepared as a report
for the U.S. Dcpmtment of Health and Human Services
under contract HHS- 100--93- 0012 10 the Lewin Group.
We would like to thank Linda i\kllgrcn. Office of the Ag-
sistant Secretary for Planning and Evaluation, and Mark
Fuccllo. Administration for Children and Families. for their
invaluable support. We also would like to tlwnk Bill Allen.
David Dollahitc, Ralph LaRossa, Theodora Ooms. Glen
Palm. Joseph Plcck, Dwaine Simms. and Dave Stapleton.
as well as member> of Vice President AI Gore's Father to
Father advisory group--Ken Canlidd, Judy Carter, Bar-
bara Clinton. Don Eberly, Vivian Gadsden. Jim Levine.
Anne Peretz, Ed Pitt, Juan Sanchez. and Rick Wciss-
bourtl-for their helpful comments on earlier To ob-
tain a copy of the for !inhering programs
included in tbe original report for the U.S. Department or
Health and Human Services, contact the first author.
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Original research article
incidence and disparities, 2006
Lawrence B. Finer
, Mia R. Zolna
Guttmacher Institute, New York, NY 10038, USA
Received 22 July 2011; accepted 28 July 2011
Abstract
Background: The incidence of unintended pregnancy is among the most essential health status indicators in the field of reproductive health.
One ongoing goal of the US Department of Health and Human Services is to reduce unintended pregnancy, but the national rate has not been
estimated since 2001.
Study Design: We combined data on women's pregnancy intentions from the 20062008 and 2002 National Survey of Family Growth with
a 2008 national survey of abortion patients and data on births from the National Center for Health Statistics, induced abortions from a
national abortion provider census, miscarriages estimated from the National Survey of Family Growth and population data from the US
Census Bureau.
Results: Nearly half (49%) of pregnancies were unintended in 2006, up slightly from 2001 (48%). The unintended pregnancy rate increased
to 52 per 1000 women aged 1544 years in 2006 from 50 in 2001. Disparities in unintended pregnancy rates among subgroups persisted and
in some cases increased, and women who were 1824 years old, poor or cohabiting had rates two to three times the national rate. The
unintended pregnancy rate declined notably for teens 1517 years old. The proportion of unintended pregnancies ending in abortion
decreased from 47% in 2001 to 43% in 2006, and the unintended birth rate increased from 23 to 25 per 1000 women 1544 years old.
Conclusions: Since 2001, the United States has not made progress in reducing unintended pregnancy. Rates increased for nearly all groups
and remain high overall. Efforts to help women and couples plan their pregnancies, such as increasing access to effective contraceptives,
should focus on groups at greatest risk for unintended pregnancy, particularly poor and cohabiting women.
2011 Elsevier Inc. All rights reserved.
Keywords: Unintended pregnancy; Reproductive health; Disparities; Abortion; Demographics; United States
1. Introduction
Preventing unintended pregnancy is a personal goal for
most couples, and reducing the national level of unintended
pregnancy is one of the most important reproductive health
goals identified by the US Department of Health and Human
Services [1]. Women who have an unintended pregnancy are
also at risk for unintended childbearing, which is associated
with a number of adverse maternal behaviors and child health
outcomes, including inadequate or delayed initiation of pre-
natal care, smoking and drinking during pregnancy, premature
birth and lack of breast-feeding, as well as negative physical
and mental health effects on children [29].
While the unintended pregnancy rate in the United States
decreased between the late 1980s and mid 1990s [10], it
stalled by 2001, the last year for which estimates are available
[11]. Recent decreases in births and abortions have occurred
among some population subgroups (e.g., teens) [12], but it is
unclear if unintended pregnancy rates have also changed. The
recent release of new data on pregnancy intentions has made
it possible to determine the incidence of unintended
pregnancy for 2006. We calculated unintended pregnancy
rates for all women of reproductive age and for key
population subgroups, including race and ethnicity and
relationship status, because previous studies indicate strong
associations between unintended pregnancy and these groups
[11]. We also present information on outcomes of unintended
pregnancy, including the percentage of unintended pregnan-
cies that ended in abortion and the rate of births that followed
unintended pregnancy. These estimates are some of the most
Contraception 84 (2011) 478485
Corresponding author. Tel.: +1 212 248 1111; fax: +1 212 248 1951.
E-mail address: lfiner@guttmacher.org (L.B. Finer).
0010-7824/$ see front matter 2011 Elsevier Inc. All rights reserved.
doi:10.1016/j.contraception.2011.07.013
SER 585
essential indicators in the field of reproductive health, and
periodic trend assessments provide valuable information for
public health officials and policy makers who monitor
progress toward reducing unintended pregnancy.
2. Materials and methods
2.1. Overview
For all US women and by key population subgroups (age,
educational attainment, race and ethnicity, income, relation-
ship status, parity and religious affiliation), we determined the
number of pregnancies that ended in birth, induced abortion
and miscarriage
1
; calculated the proportion of each of these
outcomes that were unintended; and then divided the total
number of unintended pregnancies by the population of
women aged 1544 years to obtain an unintended pregnancy
rate per 1000 women.
2.2. Counts and intendedness of pregnancies by outcome
2.2.1. Births
We relied on data from the National Center for Health
Statistics (NCHS) [1315] to obtain the number of US births
that occurred in 2001 and 2006 overall and by the mother's
age, educational attainment, race and ethnicity, relationship
status (not including cohabitation) and parity (2006 only).
We distributed births by other subgroups (including
cohabiting status) using the National Survey of Family
Growth (NSFG), a nationally representative survey of US
women aged 1544 years conducted by the NCHS.
Women's pregnancy intentions were obtained from the
NSFG, which asked women a series of retrospective questions
to determine whether each of the pregnancies they had had
were intended or unintended at the time it occurred. Intended
pregnancies were those that occurred to women who wanted a
baby at the time they became pregnant or sooner or who were
indifferent about conceiving; unintended pregnancies were
conceptions that were mistimed (i.e., the woman wanted to
become pregnant at some point in the future, but not when she
conceived) or unwanted (i.e., she did not want to become
pregnant at the time of conception nor in the future). We
focused on the births in the 5 years preceding the 20062008
(n=2044) and 2002 (n=2618) interviews.
2.2.2. Abortions
The total number of surgical and medication abortions
performed in 2001 and 2006 came from a census of US
abortion providers [16] conducted by the Guttmacher
Institute. Counts by age came from the Centers for Disease
Control and Prevention's 2001 and 2006 abortion surveil-
lance reports [17,18], and estimates for all other subgroups
were based on interpolations of distributions from two
nationally representative Abortion Patient Surveys (APS)
conducted by the Guttmacher Institute in 2000 (n=10,683)
[19] and 2008 (n=9493) [20].
Abortions are underreported in the NSFG. Therefore,
pregnancy intentions among women obtaining abortions for
both 2006 and 2001 were based on distributions from the
2008 APS, which, for the first time, asked women the same
set of questions that were used in the NSFG. Use of these
data enabled us to identify the proportion of abortions that
followed intended pregnancies, rather than assuming that all
abortions followed unintended pregnancies, an approach
used in previous analyses.
2
2.2.3. Miscarriages
There is no gold standard count of miscarriages.
Official statistics are limited to fetal deaths at 20 weeks of
gestation or later [21] and, hence, miss those that occur
earlier in pregnancy. We estimated the number of mis-
carriages for 2006 by calculating the ratio of miscarriages to
births [22] overall and by subgroup that occurred in the 7
years preceding the last two NSFG rounds (2002 and 2006
2008) and multiplying that ratio by the total number of
US births in 2006 overall and by subgroup. Women in their
teens and those 40 years or older had relatively fewer preg-
nancies, so we increased the sample size by including data
from a third round of the NSFG (1995) to improve the
validity of the estimate.
3
To estimate the number of mis-
carriages for 2001, we applied the same ratio calculated from
all three NSFG surveys combined to the 2001 birth counts.
Information on the intendedness of pregnancies ending in
miscarriage came from miscarriages in the 5 years preceding
the 20062008 (n=560) and 2002 (n=729) NSFG interviews.
In previous analyses, we relied directly on women's reports
of intendedness, but subgroup sample sizes for 2006 were
inadequate. Because miscarriages are pregnancies that would
otherwise end in either birth or abortion, we would expect
that the proportion of miscarriages that were intended would
fall between the proportion of births that were intended and
the proportion of abortions that were intended. For the entire
NSFG sample, this assumption was accurate.
4
Therefore, for
subgroups, we calculated the proportion of miscarriages that
were intended by constraining it to fall between the proportion
of births and abortions intended.
5
2.3. Population denominators and calculations
Denominators for pregnancy, birth and abortion rates for
all women aged 1544 years and by age and race and
1
Miscarriage refers to spontaneous fetal loss or stillbirth.
2
This change resulted in lower unintended pregnancy estimates for
2001 than were previously reported [11].
3
The ratio of miscarriages to births has not changed much between
1995 and 2006, so use of earlier 1995 data should not be problematic.
4
In 2006, 57% of miscarriages followed intended pregnancies,
compared with 64% of births and 5% of abortions.
5
For example, in 2006, the proportion of miscarriages that were
intended within each subgroup was calculated as A+(0.884[BA]), where
A is the proportion of abortions in that subgroup that were intended, B is the
proportion of births in that subgroup that were intended and 0.884 is (57%
5%)/(64%5%), based on the overall proportions for the sample population
mentioned in the previous footnote.
479 L.B. Finer, M.R. Zolna / Contraception 84 (2011) 478485
SER 586
ethnicity were obtained from population estimates pub-
lished by the US Census Bureau [23]. Population distri-
butions by educational attainment, poverty and relationship
status came from the Annual Social and Economic Supple-
ments of the Current Population Survey. The population
distributions for women by cohabitation status, religious
affiliation and parity were based on interpolations of the
1995, 2002 and 20062008 NSFG. Distributions by edu-
cation were limited to the population of women 20 years
and older who were likely to have completed or mostly
completed schooling.
When calculating the percentage of unintended pregnan-
cies that ended in abortion, we excluded miscarriages from
the denominator in order to better represent pregnancies with
outcomes decided by the woman.
3. Results
3.1. Proportion of unintended pregnancies and unintended
pregnancy rates
There were 6.7 million pregnancies in the United States in
2006 (Table 1), up from6.4 million in 2001 (data not shown).
Some 3.2 million pregnancies were unintended in 2006,
compared with 3.1 million in 2001 (data not shown). The
percentage of pregnancies that were unintended increased
slightly between 2001 (48%) and 2006 (49%), and the
unintended pregnancy rate also increased during this time
period: In 2006, there were 52 unintended pregnancies for
every 1000 women aged 1544 years, compared with 50 in
2001. In other words, about 5% of women of reproductive
age had an unintended pregnancy in 2006. When looking at
unintended pregnancy by timing, 29% of all pregnancies
were mistimed and 19% were unwanted (data not shown).
The intended pregnancy rate stayed nearly the same, and the
overall pregnancy rate increased.
3.1.1. Age
The proportion of pregnancies that were unintended
generally decreased with age, with more than four out of
five pregnancies unintended among women 19 years and
younger. Between 2001 and 2006, this percentage decreased
for women aged 1517 years and increased or stayed nearly
the same for all other women. The unintended pregnancy rate
was highest for women 2024 years old due to an increase
between 2001 and 2006.
3.1.2. Educational attainment
Women with the fewest years of education had the highest
unintended pregnancy rate, and rates decreased as years of
education attained increased. Unintended pregnancy rates
increased the most among women with no college experience.
3.1.3. Race and ethnicity
Black women had the highest unintended pregnancy rate
among all racial and ethnic subgroups, more than double that
of non-Hispanic white women. Rates changed little between
2001 and 2006.
3.1.4. Income
Poor and low-income women's unintended pregnancy
rates increased substantially, while the rate for higher-
income women decreased. The rate for poor women was
more than five times the rate for women in the highest
income level. While there was little difference by education
among women in the highest income bracket (Fig. 1A),
minorities had the highest unintended pregnancy rates
regardless of income level (Fig. 1B).
3.1.5. Relationship status
Unintended pregnancy rates increased among cohabitors
and formerly married women. Cohabiting women exhibited
both the highest rate and the greatest increase among all
individual subgroups measured in this analysis. Rates were
even higher among cohabiting women who were under
25 years old (Fig. 2A), poor or low-income (Fig. 2B).
3.1.6. Parity
Women with one previous birth had an unintended
pregnancy rate that was roughly twice as high as the rate for
women who had never given birth and women with two
or more previous births.
3.1.7. Religious affiliation
Women with no religious affiliation reported the highest
unintended pregnancy rate, followed by Catholics, Protes-
tants, and women with other affiliations.
3.2. Outcomes of unintended pregnancies
Forty-three percent of unintended pregnancies ended in
abortion
6
in 2006, a decline from 47% in 2001 (Table 2). In
2006, the unintended birth rate
7
was 25 per 1000 women
aged 1544 years, up from 23 in 2001.
3.2.1. Age
Between 2001 and 2006, the proportion of unintended
pregnancies ending in abortion increased for women aged
1517 years and declined or stayed the same for all other
women. The greatest declines were exhibited among women
aged 1824 years. As a result, the unintended birth rate
decreased for women aged 1517 years and increased the
most for women aged 1824 years. Rates for women aged
1824 years were more than twice the national rate.
3.2.2. Educational attainment
Women with some college but no degree were most likely
to end an unintended pregnancy by abortion; these women
were also more likely to still be enrolled in school. Those
without a high school diploma were most likely to continue an
6
As described above, this calculation excludes miscarriages.
7
The phrase unintended birth rate is shorthand for the rate of births
that followed unintended pregnancies.
SER 587
unintended pregnancy, and had an unintended birth rate that
was almost twice the national rate and nearly four times the rate
for college graduates.
3.2.3. Race and ethnicity
The proportion of unintended pregnancies ending in
abortion decreased across all racial and ethnic subgroups,
with black women most likely to end an unintended
pregnancy by abortion. Hispanic women had the highest
unintended birth rate, and minority women had rates that
were more than twice that of white women.
3.2.4. Income
Compared with higher-income women, poor and low-
income women were less likely to end an unintended
pregnancy by abortion. Consequently, poor women had a
relatively high unintended birth rate. While lower-income
women experienced an increase in the unintended birth rate,
Table 1
Number of pregnancies, percentage of pregnancies unintended and pregnancy rate by intention for all women and by demographic characteristics
Characteristics No. of pregnancies
(000), 2006
Percentage of
pregnancies
unintended
Total pregnancy
rate
a
Intended
pregnancy rate
a
Unintended
pregnancy rate
a
Total Unintended 2001 2006 2001 2006 2001 2006 2001 2006
All women 6658 3240 48 49 104 108 54 55 50 52
Age (years)
b
b15 21 21 98 98 3 2 0 0 2 2
1519 769 629 82 82 82 74 14 13 67 60
1517 263 209 89 79 47 42 5 9 42 33
1819 505 420 79 83 133 124 28 21 105 103
2024 1716 1094 59 64 172 168 72 61 101 107
2529 1751 715 40 41 171 174 102 103 69 71
3034 1334 440 33 33 131 139 88 93 43 46
3539 832 230 28 28 68 80 49 58 19 22
40 235 112 49 48 18 21 9 11 9 10
Educational attainment
c
Not HS graduate 853 445 49 52 146 154 74 74 72 80
HS graduate/equivalent 1709 826 47 48 113 122 60 63 53 59
Some college/associate degree 1565 813 52 52 90 94 43 45 47 49
College graduate 1742 459 24 26 105 113 80 84 26 30
Race and ethnicity
d
White non-Hispanic 3471 1392 40 40 87 89 52 53 34 36
Black non-Hispanic 1193 805 67 67 138 136 45 44 93 91
Hispanic 1551 824 54 53 147 155 67 72 80 82
Income as a percentage of poverty
b100% 1970 1221 61 62 196 214 77 82 120 132
100%199% 1786 1026 54 57 146 157 66 67 79 90
200% 2902 993 37 34 74 70 46 46 28 24
Relationship status
Currently married 3404 966 28 28 120 122 86 88 33 35
Never married and not cohabiting 1265 1029 78 81 57 56 13 10 45 46
Formerly married and not cohabiting 388 264 59 68 74 78 30 25 44 53
Cohabiting 1601 981 65 61 194 248 68 96 126 152
Parity
No previous births 2670 1260 u 47 u 100 u 53 u 47
1 2030 933 u 46 u 193 u 105 u 88
2 1959 1048 u 53 u 79 u 37 u 42
Religious affiliation
Protestant 3022 1456 u 48 u 101 u 52 u 48
Mainstream 1546 774 u 50 u 110 u 55 u 55
Evangelical 1476 682 u 46 u 92 u 50 u 42
Catholic 1901 862 u 45 u 120 u 66 u 54
Other 578 207 u 36 u 96 u 62 u 34
None 1158 717 u 62 u 116 u 44 u 71
Note: Numbers may not sum to group totals due to rounding. u denotes unavailable; HS, high school.
a
Rates are per 1000 women aged 1544 years.
b
The population denominator for the rates for women aged b15 years is women aged 1014 years; the denominator for the rates for women aged
40 years is women aged 4044 years.
c
Among women aged 20 years.
d
Excludes women who self-identify as other non-Hispanic race/ethnic groups.
SER 588
this rate remained relatively stable for women in the highest
income category.
3.2.5. Relationship status
Married and cohabiting women were much less likely
than other women to end an unintended pregnancy by abor-
tion. The rate of unintended births among cohabiting women
increased sharply and was more than three times the rate
for other women.
3.2.6. Parity
Women with exactly one previous birth were least likely
to end an unintended pregnancy by abortion, and their
unintended birth rate was more than twice that of the
other groups.
3.2.7. Religious affiliation
Women with no religious affiliation were most likely to
end an unintended pregnancy by abortion; they also had the
highest unintended birth rate, followed closely by Catholics
and Protestants. Evangelicals were least likely to terminate
an unintended pregnancy.
4. Discussion
The US unintended pregnancy rate increased slightly
between 2001 and 2006, a worrisome trend, and remains
significantly higher than the rate in many other developed
countries [24]. Population shifts for example, increases in
groups with high rates, such as poor and minority women
may have contributed to the overall increase. In addition, the
overall increase could have occurred if the trend toward later
childbearing [25] has led to a longer period before child-
bearing when relatively less-effective methods are used [26]
and a shorter period post-childbearing when use of highly
effective long-term methods is more common.
Fig. 1. (A) Unintended pregnancy rates for poor women were inversely
related to educational attainment, but rates among women in the highest
income bracket varied little across education levels. (a) Rates for
educational attainment are among women aged 2044 years. (b) Rates
for college graduates at b100% and 100%199% of poverty are com-
bined to account for small sample sizes. (B) Among poor women,
Hispanics had the highest unintended pregnancy rate, and among the
low- and higher-income groups, black women had the highest rate. Note:
This figure excludes women who self-identify as other non-Hispanic
race/ethnic groups.
Fig. 2. (A) Teens had relatively high unintended pregnancy rates among
married and cohabiting women, but noncohabiting teens had a lowunintended
pregnancy rate. (a) The rate for married women aged 1519 years is not
available. (B) Women in lower-income groups had relatively high unintended
pregnancy rates regardless of relationship status. Cohabiting women had the
highest rates across all income levels, and among them, poor or low-income
women had very high rates. Notes: Unmarried women include never-married
and formerly married women. Cohabiting women were not married.
SER 589
During the same period, the overall proportion of women
ending an unintended pregnancy by abortion decreased.
These changes may have been due to decreased access to
abortion in some areas, increased stigmatization of abortion
or both.
Among all the subgroups for which we present data, only
women aged 1517 years saw notable improvements since
2001; both their unintended pregnancy rate and unintended
birth rate declined by roughly one quarter.
Many disparities among subgroups, already large, grew.
In particular, cohabiting women exhibited very high and
increasing unintended pregnancy and unintended birth rates.
Like married women, cohabiting women are regularly
sexually active but are less likely than married women to
desire pregnancy and, thus, are at a very high risk for unin-
tended pregnancy. They are, however, more likely to carry a
pregnancy including an unintended pregnancy to term
than unmarried noncohabiting women, perhaps because
they have more partner support. In addition, the decline in
the proportion of unintended pregnancies ending in abortion
may have been related to increased normalization of child-
bearing among these couples. These findings represent con-
sequences of broad demographic trends specifically,
fewer married women and a greater proportion of child-
bearing to unmarried women and also help to explain
those trends by showing that cohabiting couples, regardless
of marital status, have high pregnancy rates and that a large
proportion of those pregnancies are unintended.
Poor and low-income women also experienced some of the
greatest increases and highest rates of unintended pregnancy.
This finding is consistent with numerous studies that document
the association between disadvantage and higher risk for
unintended pregnancy [2729]. While reasons behind this
relationship are not fully understood, they are related to the
significant life challenges facing many of these women [30,31].
The upward trend in their unintended pregnancy rate has
continued for over a decade [10]. During this time, publicly
funded family planning clinicswhich have been shown to
helplowincome womenachieve their childbearing goals [32]
were only able to meet about 40% of the need for publicly
subsidized care [33]. This gap in services, along with rising
unintended pregnancy rates, underscores the need to expand
programs that could enable low income women and couples to
be more consistent and effective contraceptive users.
The disparities by parity are probably explained by the
desire for families with two children. In other words, the
high intended and unintended rates for women with one birth
compared with childless women or those with two or more
births may be due to the fact that women reporting only
one birth may be more likely to have a second birth but are
less likely to progress to a third birth [34]. At the same
time, their high unintended pregnancy rate suggests that
mothers have difficulties timing births, and their high unin-
tended birth rate suggests less concern about continuing an
unintended pregnancy compared with other women.
This is an aggregate-level analysis incorporating data from
multiple data sets, which makes statistical testing difficult.
One test that can be performed is a comparison based on a
subset of our data: the proportion of pregnancies ending in
birth (i.e., excluding abortions, which are underreported, and
miscarriages) that were unintended in 2006 and 2001. The
Table 2
Percentage of unintended pregnancies ending in abortion and unintended
birth rate for all women and by demographic characteristics
Characteristics Percentage of
unintended
pregnancies
ending in
abortion
a
Unintended
birth rate
b
2001 2006 2001 2006
All women 47 43 23 25
Age (years)
c
b15 50 49 1 1
1519 39 37 35 32
1517 37 41 21 16
1819 40 35 54 57
2024 47 41 47 56
2529 49 46 31 33
3034 47 45 20 22
3539 56 56 7 7
40 47 46 3 4
Educational attainment
d
Not HS graduate 34 32 41 46
HS graduate/equivalent 43 40 26 30
Some college/associate degree 59 56 17 19
College graduate 54 49 10 12
Race and ethnicity
e
White non-Hispanic 42 39 17 18
Black non-Hispanic 57 52 35 37
Hispanic 40 38 42 45
Income as a percentage of poverty
b100% 40 43 63 66
100%199% 48 38 36 46
200% 51 49 11 10
Relationship status
Currently married 24 22 21 23
Never married and not cohabiting 59 61 16 15
Formerly married and not cohabiting 66 60 12 17
Cohabiting 53 39 53 79
Parity
No previous births u 44 u 22
1 u 40 u 45
2 u 46 u 19
Religious affiliation
Protestant u 38 u 25
Mainstream u 44 u 26
Evangelical u 32 u 24
Catholic u 44 u 26
Other u 47 u 15
None u 51 u 30
Note: u denotes unavailable; HS, high school.
a
Pregnancies exclude spontaneous fetal losses and stillbirths.
b
Rates are per 1000 women aged 1544 years.
c
The population denominator for the rates for women aged b15 years
is women aged 1014 years; the denominator for the rates for women aged
40 years is women aged 4044 years.
d
Among women aged 20 years.
e
Excludes women who self-identify as other non-Hispanic race/
ethnic groups.
SER 590
overall percentage increase, from 35% to 36%, was
not significant, although the increase among women aged
2024 years, from 45% to 53%, was significant at the pb.10
level. Nonetheless, we do see substantively significant
changes in unintended pregnancy rates in several subgroups.
This argues that the limited tests on a subset of our key
statistic do not capture the whole picture, and their results
should not be considered conclusive.
In conclusion, the United States did not make progress
toward its goal of reducing unintended pregnancy between
2001 and 2006. To better understand what drove these rates
up, we are currently conducting a demographic analysis of
changes in population composition and reproductive health
behaviors that have historically affected them. However,
given the nation's increasingly high unintended pregnancy
rate and the fact that 11% of the population at risk does
not use birth control [26], reducing the unintended pregnancy
rate requires that we focus on increasing and improving
contraceptive use among women and couples who want to
avoid pregnancy. Increased use of long-acting and cost-
effective contraceptive methods such as the intrauterine
device (IUD) could play an important role in such an effort. In
particular, the age at which childbearing begins has increased
[25], and the length of time from first intercourse to first birth
is, on average, 8 years; this is a period of potential risk for
women and couples and should be seen as an appropriate time
to use long-acting methods. The American Congress of
Obstetricians and Gynecologists has indicated that such
methods should be first-line choices for young women, and
coupling IUDs with condoms for additional protection may
have the potential to reduce unintended pregnancy even
further [35,36]. Although these methods are highly cost-
effective over time, even women with health insurance may
have difficulty paying for these methods because some plans
do not cover the high upfront costs or other charges women
often incur to use them [37]. Research indicates that when
financial barriers are completely removed and comprehen-
sive information is provided on all methods, women choose
long-acting, highly effective methods in large numbers [38].
Acknowledgments
The authors would like to thank Stanley Henshaw, Rachel
Jones and Megan Kavanaugh for reviewing the manuscript,
as well as Jacqueline Darroch and Susheela Singh for pro-
viding guidance on study methodology. This study was sup-
ported by award R01HD059896 from the Eunice Kennedy
Shriver National Institute of Child Health and Human
Development (NICHD). The content is solely the responsi-
bility of the authors and does not necessarily represent the
official views of NICHD or the National Institutes of Health.
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41, 168-70 (2002)
73 535
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73 546
292 (1998)
73 561
(2002)
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A database of social science ndings on the family, society, and religion gleaned from peer-
reviewed journals, familyfacts.org seeks to make social science research easily accessible
to non-specialists, including policymakers, journalists, scholars, and the general public.
Published by The Heritage Foundation
214 Massachusetts Avenue, N.E. | Washington, DC 20002 | (202) 546-4400 | heritage.org
The Relationship Between
Family Structure and
Adolescent Sexual Activity
By Samuel W. Sturgeon
To view this Special Report in its entirety, go to www.familyfacts.org.
Major Findings
1. Likelihood of Being Sexually Active. Adolescents from more intact family
structures are less likely to engage in sexual activity than their peers from
non-intact family backgrounds.
2. Age at First Intercourse. When adolescents from intact families become
sexually active, they tend to do so at an older age than their counterparts
from non-intact families.
3. Impact of Parental Divorce. Experiencing parental divorce or multiple
changes in family structure and living in a single-parent household
during childhood are all associated with an increased risk of adolescent
virginity loss.
4. Adolescent Risk Behavior. On average, youths from intact families have had
fewer sexual experiences and fewer sexual partners than adolescents from
less intact family structures.
Related Topics
Parental Marital Status and Adolescent Mental/Emotional Health
Adolescent Sexual Activity and Adolescent Mental/Emotional Health
Abstinence Education and Sexual Initiation Age
Sexual Initiation Age and Sexually Transmitted Diseases
About the Author
Samuel W. Sturgeon is a Ph.D. candidate in Human Development and Family
Studies and Demography at the Pennsylvania State University. His research
focuses on family demography, adolescent pregnancy, welfare policy, and
quantitative research methodology. He was awarded a FamilyFacts Fellowship
at The Heritage Foundation in 2006.
No. 1 | November 2008
Quick Summary
When compared to peers from
other family structures, adoles-
cents from intact families were
less likely to have been sexually
active. Among youths who had
been sexually active, on average,
those from intact families had
fewer sexual partners, were less
likely have a sexually transmit-
ted disease, and were less
likely to have ever experienced a
pregnancy or live birth. They also
tended to delay rst intercourse
for a longer time than peers
in other family structures, and
this delay was associated with
nearly all other positive outcomes
regarding the sexual behavior.
About this Special Report
This paper provides a systematic
summary of the social science
literature that has been pub-
lished in the past 25 years linking
adolescent sexual outcomes
to variations in family structure.
The paper is based on a review
of more than 180 peer-reviewed
articles and primarily features the
studies that were based on sur-
veys of nationally representative
samples, including, the National
Survey of Family Growth (NSFG)
1982, 1988, and 1995 waves;
the National Center for Health
Statistics (NCHS, 2006); the Na-
tional Survey of Adolescent Males
(NSAM) in 1988 and 1995; the
National Longitudinal Survey for
Youth; and the National Longitudi-
nal Survey of Adolescent Health.
SER 593
At a Glance: The Relationship Between Family Structure and Adolescent Sexual Activity
For more information about this study or nding, contact www.familyfacts.org.
For additional charts on this topic, see The Harmful Effects of Early Sexual Activity and Multiple Sexual
Partners Among Women: A Book of Charts at www.heritage.org/Research/Abstinence/abstinence_charts.cfm.
Figure 1. Percent of Adolescents Who Have Ever Had Sexual Intercourse
Family Structure at Age 14
Age 1519 (2002)
100%
75%
50%
25%
0
Before Age 15 (1995) Age 1519 (1995)
Note: Data are for never-married adolescents. * Including a cohabiting parent if other adult is not related.
Sources: J. C. Abma, G. M. Martinez, W. D. Mosher, and B. S. Dawson, Teenagers in the United States: Sexual Activity, Contraceptive Use, and Childbearing, 2002
(Washington, D.C.: National Center for Health Statistics, 2004), and J. C. Abma and F. L. Sonenstein, Sexual Activity and Contraceptive Practices Among Teenagers in
the United States, 1988 and 1995 (Washington, D.C.: National Center for Health Statistics, 2001).
Intact
Family
Non-Intact
Family
3
0
.
7
%
3
3
.
5
%
5
2
.
4
%
5
4
.
0
%
Intact
Family
Single
Parent*
Parent and
Stepparent
4
2
.
5
%5
0
.
4
%
5
8
.
9
%6
7
.
6
%
5
5
.
3
%
5
4
.
0
%
6
4
.
2
%
8
0
.
3
%
Intact
Family
Single
Parent*
Parent and
Stepparent
No Parent/
Other
No Parent/
Other
1
1
.
8
%
1
6
.
8
%
2
9
.
0
%
3
4
.
7
%
2
4
.
4
%
1
6
.
1
%
2
9
.
6
%
5
2
.
3
%
Female Male
% Adolescents
Who Had Ever Had
Sexual Intercourse
Ratio: Non-Intact to Intact
Age
Age Age
Non-Intact
Families
Intact
Families
Non-Intact
Families
Intact
Families
Ratio:
Non-Intact
to Intact
12
13
14
15
16
17
18
19
10%
15%
22%
31%
40%
51%
63%
70%
6%
10%
15%
22%
31%
40%
51%
63%
1.67
1.50
1.47
1.41
1.29
1.28
1.24
1.11
Age
Non-Intact
Families
Intact
Families
Ratio:
Non-Intact
to Intact
Ratio:
Non-Intact
to Intact
12
13
14
15
16
17
18
19
12
13
14
15
16
17
18
19
15%
22%
31%
40%
51%
63%
70%
75%
10%
15%
22%
31%
40%
51%
63%
70%
10%
15%
22%
31%
40%
51%
63%
70%
6%
10%
15%
22%
31%
40%
51%
63%
1.50
1.47
1.41
1.29
1.28
1.24
1.11
1.07
1.67
1.50
1.47
1.41
1.29
1.28
1.24
1.11
Race A
Race A
Race B
Race B
In this hypothetical population,
adolescents in intact families have
sexual intercourse for the first time at
the same rate as those in non-intact
families, only they start a year later, a
phenomenon referred to as lagging.
This phenomenon appears as well when comparing two races. When adolescents from one race engage in sexual activity
for the first time at an earlier age (Race A in this hypothetical population), their relative proportions of adolescents from
non-intact families to intact families who have ever had sexual intercourse are lower than a different race (Race B).
As a result, the relative proportion of
adolescents from non-intact families
to intact families who have ever had
sexual intercourse is high for younger
children but decreases as they get
older.
Figure 2: The Effects
of Family Structure
on Adolescent
Sexual Activity
1.000
12 13 14 15 16 17 18 19
1.125
1.250
1.375
1.500
1.625
1.750
SER 594
The Impact of Family Formation Change on the Cognitive, Social,
and Emotional Well-Being of the Next Generation
Amato, Paul R.
The Future of Children, Volume 15, Number 2, Fall 2005, pp. 75-96
(Article)
Published by Princeton University
DOI: 10.1353/foc.2005.0012
For additional information about this article
Access Provided by University of Virginia Libraries __ACCESS_STATEMENT__ (Viva) at 07/18/12 1:41PM GMT
http://muse.jhu.edu/journals/foc/summary/v015/15.2amato.html
SER 595
The Impact of Family Formation Change
on the Cognitive, Social, and Emotional
Well-Being of the Next Generation
Paul R. Amato
Summary
How have recent changes in U.S. family structure affected the cognitive, social, and emotional
well-being of the nations children? Paul Amato examines the effects of family formation on
children and evaluates whether current marriage-promotion programs are likely to meet chil-
drens needs.
Amato begins by investigating how children in households with both biological parents differ
from children in households with only one biological parent. He shows that children growing
up with two continuously married parents are less likely to experience a wide range of cogni-
tive, emotional, and social problems, not only during childhood but also in adulthood. Although
it is not possible to demonstrate that family structure causes these differences, studies using a
variety of sophisticated statistical methods suggest that this is the case.
Amato then asks what accounts for the differences between these two groups of children. He
shows that compared with other children, those who grow up in stable, two-parent families
have a higher standard of living, receive more effective parenting, experience more cooperative
co-parenting, are emotionally closer to both parents, and are subjected to fewer stressful events
and circumstances.
Finally, Amato assesses how current marriage-promotion policies will affect the well-being of
children. He finds that interventions that increase the share of children who grow up with both
parents would improve the overall well-being of U.S. children only modestly, because chil-
drens social or emotional problems have many causes, of which family structure is but one. But
interventions that lower only modestly the overall share of U.S. children experiencing various
problems could nevertheless lower substantially the number of children experiencing them.
Even a small decline in percentages, when multiplied by the many children in the population,
is a substantial social benefit.
VOL . 15 / NO. 2 / FAL L 2005 75
www.futureofchildren.org
Paul R. Amato is professor of sociology at Pennsylvania State University.
05 FOC 15-2 fall05 Amato.qxp 8/4/2005 12:03 PM Page 75
SER 596
P
erhaps the most profound
change in the American family
over the past four decades has
been the decline in the share of
children growing up in house-
holds with both biological parents. Because
many social scientists, policymakers, and
members of the general public believe that a
two-parent household is the optimal setting
for childrens development, the decline in
such households has generated widespread
concern about the well-being of American
children. This concern has generated inter-
est among policymakers in programs and in-
terventions to increase the share of children
growing up in stable, two-parent families.
Not everyone, however, agrees with these
policies; many observers believe that it is
either inappropriate, or futile, for govern-
ment to attempt to affect childrens family
structures.
My goal in this article is to inform this debate
by addressing three questions. First, how do
children in households with only one biologi-
cal parent differ in terms of their cognitive,
social, and emotional well-being from chil-
dren in households with both biological par-
ents? Second, what accounts for the observed
differences between these two groups of chil-
dren? And finally, how might current policies
to strengthen marriage, decrease divorce,
and lower nonmarital fertility affect the well-
being of children in the United States?
Research on the Effects of
Family Structure on Children
The rise in the divorce rate during the 1960s
and 1970s prompted social scientists to inves-
tigate how differing family structures affect
children. Their research focus initially was on
children of divorced parents, but it expanded
to include out-of-wedlock children and those
in other nontraditional family structures.
Parental Divorce
Early studies generally supported the as-
sumption that children who experience
parental divorce are prone to a variety of aca-
demic, behavioral, and emotional problems.
1
In 1971, psychologists Judith Wallerstein and
Joan Kelly began an influential long-term
study of 60 divorced families and 131 chil-
dren. According to the authors, five years
after divorce, one-third of the children were
adjusting well and had good relationships
with both parents. Another group of children
(more than one-third of the sample) were
clinically depressed, were doing poorly in
school, had difficulty maintaining friend-
ships, experienced chronic problems such as
sleep disturbances, and continued to hope
that their parents would reconcile.
2
Despite these early findings, other studies in
the 1970s challenged the dominant view that
divorce is uniformly bad for children. For ex-
ample, Mavis Hetherington and her col-
leagues studied 144 preschool children, half
from recently divorced maternal-custody
families and half from continuously married
two-parent families. During the first year of
the study, the children with divorced parents
exhibited more behavioral and emotional
problems than did the children with continu-
ously married parents. Two years after di-
vorce, however, children with divorced par-
ents no longer exhibited an elevated number
of problems (although a few difficulties lin-
gered for boys). Despite this temporary im-
provement, a later wave of data collection re-
vealed that the remarriage of the custodial
mother was followed by additional problems
among the children, especially daughters.
3
Trying to make sense of this research litera-
ture can be frustrating, because the results of
individual studies vary considerably: some
suggest serious negative effects of divorce,
Pa ul R. Ama t o
76 T HE FUT URE OF CHI L DREN
SER 597
others suggest modest effects, and yet others
suggest no effects. Much of this inconsistency
is due to variations across studies in the types
of samples, the ages of the children, the out-
comes examined, and the methods of analy-
sis. To summarize general trends across such
a large and varied body of research, social
scientists use a technique known as meta-
analysis. By calculating an effect size for each
study (which reflects the difference between
two groups expressed in a common metric),
meta-analysis makes it possible to pool re-
sults across many studies and adjust for varia-
tions such as those noted.
4
In 1991, Bruce Keith and I published the
first meta-analysis dealing with the effects of
divorce on children.
5
Our analysis summa-
rized the results of ninety-three studies pub-
lished in the 1960s, 1970s, and 1980s and
confirmed that children with divorced par-
ents are worse off than those with continu-
ously married parents on measures of aca-
demic success (school grades, scores on
standardized achievement tests), conduct
(behavior problems, aggression), psychologi-
cal well-being (depression, distress symp-
toms), self-esteem (positive feelings about
oneself, perceptions of self-efficacy), and
peer relations (number of close friends, social
support from peers), on average. Moreover,
children in divorced families tend to have
weaker emotional bonds with mothers and
fathers than do their peers in two-parent
families. These results supported the conclu-
sion that the rise in divorce had lowered the
average level of child well-being.
Our meta-analysis also indicated, however,
that the estimated effects of parental divorce
on childrens well-being are modest rather
than strong. We concluded that these modest
differences reflect widely varying experiences
within both groups of children. Some children
growing up with continuously married parents
are exposed to stressful circumstances, such as
poverty, serious conflict between parents, vio-
lence, inept parenting, and mental illness or
substance abuse, that increase the risk of child
maladjustment. Correspondingly, some chil-
dren with divorced parents cope well, perhaps
because their parents are able to separate am-
icably and engage in cooperative co-parenting
following marital dissolution.
In a more recent meta-analysis, based on
sixty-seven studies conducted during the
1990s, I again found that children with di-
vorced parents, on average, scored signifi-
cantly lower on various measures of well-
being than did children with continuously
married parents.
6
As before, the differences
between the two groups were modest rather
than large. Nevertheless, the more recent
meta-analyses revealed that children with di-
vorced parents continued to have lower aver-
age levels of cognitive, social, and emotional
well-being, even in a decade in which divorce
had become common and widely accepted.
Other studies have shown that the differ-
ences in well-being between children with di-
vorced and children with continuously mar-
ried parents persist well into adulthood. For
example, adults who experience parental di-
vorce as a child have lower socioeconomic at-
The I mpa c t o f Fa mi l y Fo r ma t i o n Cha ng e o n t he We l l - Be i ng o f t he Ne x t Ge ne r a t i o n
VOL . 15 / NO. 2 / FAL L 2005 77
Children in divorced
families tend to have
weaker emotional bonds
with mothers and fathers
than do their peers in
two-parent families.
SER 598
tainment, an increased risk of having a non-
marital birth, weaker bonds with parents,
lower psychological well-being, poorer mari-
tal quality, and an elevated risk of seeing their
own marriage end in divorce.
7
Overall, the
evidence is consistent that parental divorce
during childhood is linked with a wide range
of problems in adulthood.
Children Born outside Marriage
Children born outside marriage have been
studied less frequently than have children of
divorce. Nevertheless, like children with di-
vorced parents, children who grow up with a
single parent because they were born out of
wedlock are more likely than children living
with continuously married parents to experi-
ence a variety of cognitive, emotional, and
behavioral problems. Specifically, compared
with children who grow up in stable, two-
parent families, children born outside mar-
riage reach adulthood with less education,
earn less income, have lower occupational
status, are more likely to be idle (that is, not
employed and not in school), are more likely
to have a nonmarital birth (among daugh-
ters), have more troubled marriages, experi-
ence higher rates of divorce, and report more
symptoms of depression.
8
A few studies have compared children of un-
married single parents and divorced single
parents. Despite some variation across studies,
this research generally shows that the long-
term risks for most problems are comparable
in these two groups. For example, Sara
McLanahan and Gary Sandefur, using the Na-
tional Survey of Families and Households,
found that 31 percent of youth with divorced
parents dropped out of high school, compared
with 37 percent of youth born outside mar-
riage (the corresponding figure for youth with
continuously married parents was 13 percent).
Similarly, 33 percent of daughters with di-
vorced parents had a teen birth, compared
with 37 percent of daughters born outside
marriage (the corresponding figure for daugh-
ters with continuously married parents was 11
percent).
9
Other studies that have compared
offspring in these two groups yield similar re-
sults with respect to occupational attainment,
earned income, depression, and the risk of
seeing ones own marriage end in divorce.
10
Although it is sometimes assumed that chil-
dren born to unwed mothers have little con-
tact with their fathers, about 40 percent of
unmarried mothers are living with the childs
father at the time of birth.
11
If one-third of all
children are born to unmarried parents, and
if 40 percent of these parents are cohabiting,
then about one out of every eight infants lives
with two biological but unmarried parents.
Structurally, these households are similar to
households with two married parents. And
young children are unlikely to be aware of
their parents marital status. Nevertheless,
cohabiting parents tend to be more disadvan-
taged than married parents. They have less
education, earn less income, report poorer
relationship quality, and experience more
mental health problems.
12
These considera-
tions suggest that children living with cohab-
iting biological parents may be worse off, in
some respects, than children living with two
married biological parents.
Consistent with this assumption, Susan L.
Brown found that children living with cohab-
iting biological parents, compared with chil-
dren living with continuously married par-
ents, had more behavioral problems, more
emotional problems, and lower levels of
school engagement (that is, caring about
school and doing homework).
13
Parents edu-
cation, income, psychological well-being, and
parenting stress explained mostbut not
allof these differences. In other words, un-
Pa ul R. Ama t o
SER 599
married cohabiting parents, compared with
married parents, had fewer years of educa-
tion, earned less income, had lower levels of
psychological well-being, and reported more
stress in parenting. These factors, in turn,
partly accounted for the elevated number of
problems among their children.
The risk of relationship dissolution also is
substantially higher for cohabiting couples
with children than for married couples with
children.
14
For example, the Fragile Families
Study indicates that about one-fourth of co-
habiting biological parents are no longer liv-
ing together one year after the childs birth.
15
Another study of first births found that 31
percent of cohabiting couples had broken up
after five years, as against 16 percent of mar-
ried couples.
16
Growing up with two continu-
ously cohabiting biological parents is rare.
Using the 1999 National Survey of American
Families, Brown found that only 1.5 percent
of all children lived with two cohabiting par-
ents at the time of the survey.
17
Similarly, an
analysis of the 1995 Adolescent Health Study
(Add Health) revealed that less than one-half
of 1 percent of adolescents aged sixteen to
eighteen had spent their entire childhoods
living with two continuously cohabiting bio-
logical parents.
18
Unresolved questions remain about children
born to cohabiting parents who later marry. If
cohabiting parents marry after the birth of a
child, is the child at any greater risk than if
the parents marry before having the child?
Correspondingly, do children benefit when
their cohabiting parents get married? To the
extent that marriage increases union stability
and binds fathers more strongly to their chil-
dren, marriage among cohabiting parents
may improve childrens long-term well-being.
Few studies, however, have addressed this
issue.
Death of a Parent
Some children live with a single parent not
because of divorce or because they were born
outside marriage but because their other par-
ent has died. Studies that compare children
who experienced the death of a parent with
children separated from a parent for other
reasons yield mixed results. The Amato and
Keith meta-analysis found that children who
experienced a parents death scored lower on
several forms of well-being than did children
living with continuously married parents.
Children who experienced a parents death,
however, scored significantly higher on sev-
eral measures of well-being than did children
with divorced parents.
19
McLanahan and
Sandefur found that children with a deceased
parent were no more likely than children
with continuously married parents to drop
out of high school. Daughters with a de-
ceased parent, however, were more likely
than teenagers living with both parents to
have a nonmarital birth.
20
Another study
found that although adults whose parents di-
vorced or never married during their child-
hood had lower levels of socioeconomic at-
tainment than did adults who grew up with
continuously married parents, adults who ex-
perienced the death of a parent as a child did
not differ from those with two continuously
married parents.
21
In contrast, Amato found
VOL . 15 / NO. 2 / FAL L 2005 79
The risk of relationship
dissolution also is
substantially higher for
cohabiting couples with
children than for married
couples with children.
SER 600
that all causes of separation from a parent
during childhood, including parental death,
were linked with increased symptoms of de-
pression in adulthood.
22
Although the re-
search findings are mixed, these studies sug-
gest that experiencing the death of a parent
during childhood puts children at risk for a
number of problems, but not as much as does
divorce or out-of-wedlock birth.
Discordant Two-Parent Families
Most studies in this literature have compared
children living with a single parent with a
broad group of children living with continu-
ously married parents. Some two-parent fam-
ilies, however, function better than others.
Marriages marked by chronic, overt conflict
and hostility are intact structurally but are
not necessarily good environments in which
to raise children. Some early studies com-
pared children living with divorced parents
and children living with two married but dis-
cordant parents. In general, these studies
found that children in high-conflict house-
holds experience many of the same problems
as do children with divorced parents. In fact,
some studies show that children with discor-
dant married parents are worse off than chil-
dren with divorced parents.
23
A more recent generation of long-term stud-
ies has shown that the effects of divorce vary
with the degree of marital discord that pre-
cedes divorce. When parents exhibit chronic
and overt conflict, children appear to be bet-
ter off, in the long run, if their parents split
up rather than stay together. But when par-
ents exhibit relatively little overt conflict,
children appear to be better off if their par-
ents stay together. In other words, children
are particularly at risk when low-conflict mar-
riages end in divorce.
24
In a twenty-year
study, Alan Booth and I found that the major-
ity of marriages that ended in divorce fell into
the low-conflict group. Spouses in these mar-
riages did not fight frequently or express hos-
tility toward their partners. Instead, they felt
emotionally estranged from their spouses,
and many ended their marriages to seek
greater happiness with new partners. Al-
though many parents saw this transition as
positive, their children often viewed it as un-
expected, inexplicable, and unwelcome. Chil-
dren and parents, it is clear, often have differ-
ent interpretations of family transitions.
25
Stepfamilies
Although rates of remarriage have declined in
recent years, most divorced parents eventu-
ally remarry. Similarly, many women who
have had a nonmarital birth eventually marry
men who are not the fathers of their children.
Adding a stepfather to the household usually
improves childrens standard of living. More-
over, in a stepfamily, two adults are available
to monitor childrens behavior, provide super-
vision, and assist children with everyday prob-
lems. For these reasons, one might assume
that children generally are better off in step-
families than in single-parent households.
Studies consistently indicate, however, that
children in stepfamilies exhibit more prob-
lems than do children with continuously mar-
ried parents and about the same number of
problems as do children with single parents.
26
In other words, the marriage of a single par-
ent (to someone other than the childs biolog-
ical parent) does not appear to improve the
functioning of most children.
Although the great majority of parents view
the formation of a stepfamily positively, chil-
dren tend to be less enthusiastic. Stepfamily
formation is stressful for many children be-
cause it often involves moving (generally to a
different neighborhood or town), adapting to
new people in the household, and learning
new rules and routines. Moreover, early rela-
Pa ul R. Ama t o
SER 601
tionships between stepparents and stepchil-
dren are often tense. Children, especially
adolescents, become accustomed to a sub-
stantial degree of autonomy in single-parent
households. They may resent the monitoring
and supervision by stepparents and react with
hostility when stepparents attempt to exert
authority. Some children experience loyalty
conflicts and fear that becoming emotionally
close to a stepparent implies betraying the
nonresident biological parent. Some become
jealous because they must share parental
time and attention with the stepparent. And
for some children, remarriage ends any lin-
gering hopes that the two biological parents
will one day reconcile.
27
Finally, stepchildren
are overrepresented in official reports of
child abuse.
28
Of course, the great majority of
stepparents are not abusive. Moreover, sur-
vey data have not supported the notion that
children in stepfamilies are more likely to be
abused than are children in two-parent fami-
lies.
29
Nevertheless, even a slight trend in
this direction would represent an additional
risk for children in stepfamilies.
Although relationships in many stepfamilies
are tense, stepparents are still able to make
positive contributions to their stepchildrens
lives. If stepfamilies survive the early crisis
stage, then close and supportive relationships
between stepparents and stepchildren often
develop. Research suggests that these rela-
tionships can serve as important resources for
childrens development and emotional well-
being.
30
The increase in nonmarital cohabitation has
focused attention on the distinction between
married-couple stepfamilies and cohabiting-
couple stepfamilies. Christine Buchanan,
Eleanor Maccoby, and Sanford Dornbusch
found that adolescents had fewer emotional
and behavior problems following divorce if
their mothers remarried than if they cohab-
ited with a partner.
31
Similarly, two studies of
African American families found that children
were better off in certain respects if they lived
with stepfathers than with their mothers co-
habiting partners.
32
In contrast, Susan Brown
found no significant differences between chil-
dren in married and cohabiting stepfamilies.
33
Although these data suggest that children may
be better off if single mothers marry their
partners rather than cohabit, the small num-
ber of studies on this topic makes it difficult
to draw firm conclusions.
Variations by Gender of Child
Several early influential studies found that
boys in divorced families had more adjust-
ment problems than did girls.
34
Given that
boys usually live with their mothers following
family disruption, the loss of contact with the
same-gender parent could account for such a
difference. In addition boys, compared with
girls, may be exposed to more conflict, re-
ceive less support from parents and others
(because they are believed to be tougher),
and be picked on more by custodial mothers
(because sons may resemble their fathers).
Subsequent studies, however, have failed to
find consistent gender differences in chil-
drens reactions to divorce.
The meta-analyses on children of divorce pro-
vide the most reliable evidence on this topic.
The Amato and Keith meta-analysis of studies
conducted before the 1990s revealed one sig-
nificant gender difference: the estimated neg-
ative effect of divorce on social adjustment
was stronger for boys than girls. In other
areas, however, such as academic achieve-
ment, conduct, and psychological adjustment,
no differences between boys and girls were
apparent.
35
In my meta-analysis of studies
conducted in the 1990s, the estimated effect
of divorce on childrens conduct problems was
VOL . 15 / NO. 2 / FAL L 2005 81
SER 602
stronger for boys than for girls, although no
other gender differences were apparent.
36
Why the earlier studies suggest a gender dif-
ference in social adjustment and the more re-
cent studies suggest a gender difference in
conduct problems is unclear. Nevertheless,
taken together, these meta-analyses provide
some limited support for the notion that boys
are more susceptible than girls to the detri-
mental consequences of divorce.
Variations by Race of Child
Compared with whites, African Americans
have a higher rate of marital disruption and a
substantially higher rate of nonmarital births.
Because relatively little research has focused
on this topic, however, it is difficult to reach
firm conclusions about racial differences in
childrens well-being in single-parent house-
holds. Some research suggests that the aca-
demic deficits associated with living with a
single mother are less pronounced for black
than for white children.
37
One study found
that growing up in a single-parent family pre-
dicted lower socioeconomic attainment
among white women, white men, and black
women, but not among black men.
38
McLana-
han and Sandefur found that white offspring
from single-parent families were more likely
to drop out of high school than were African
American offspring from single-parent fami-
lies.
39
African American children may thus
adjust better than white children to life in sin-
gle-parent families, although the explanation
for this difference is not clear. Other studies,
however, have found few racial differences in
the estimated effects of growing up with a sin-
gle parent on long-term outcomes.
40
Some studies suggest that stepfathers play a
particularly beneficial role in African Ameri-
can families. One study found that in African
American families (but not European Ameri-
can families), children who lived with stepfa-
thers were less likely to drop out of high
school or (among daughters) have a nonmari-
tal birth.
41
Similarly, a study of African Amer-
icans living in high-poverty neighborhoods
found that girls living with their mothers and
stepfathers were less likely than girls living
with single mothers to become sexually active
or pregnant. Interestingly, the protective ef-
fect of a stepfather held only when mothers
were married and not when they were cohab-
iting.
42
Another study yielded comparable re-
sults: among African Americans, adolescents
living with stepfathers were better off in
many respects than were adolescents living
with single mothers, but adolescents living
with cohabiting parents were worse off than
those living with single mothers.
43
The rea-
sons for these racial differences are not clear,
and future research is required to understand
how interpersonal dynamics differ in white
and African American stepfamilies.
Why Do Single-Parent Families
Put Children at Risk?
Researchers have several theories to explain
why children growing up with single parents
have an elevated risk of experiencing cogni-
tive, social, and emotional problems. Most
refer either to the economic and parental re-
sources available to children or to the stress-
ful events and circumstances to which these
children must adapt.
Economic Hardship
For a variety of reasons documented else-
where in this volume, most children living
with single parents are economically disad-
vantaged. It is difficult for poor single parents
to afford the books, home computers, and pri-
vate lessons that make it easier for their chil-
dren to succeed in school. Similarly, they can-
not afford clothes, shoes, cell phones, and
other consumer goods that give their children
status among their peers. Moreover, many live
Pa ul R. Ama t o
SER 603
in rundown neighborhoods with high crime
rates, low-quality schools, and few community
services. Consistent with these observations,
many studies have shown that economic re-
sources explain some of the differences in
well-being between children with single par-
ents and those with continuously married par-
ents.
44
Research showing that children do
better at school and exhibit fewer behavioral
problems when nonresident fathers pay child
support likewise suggests the importance of
income in facilitating childrens well-being in
single-parent households.
45
Quality of Parenting
Regardless of family structure, the quality of
parenting is one of the best predictors of chil-
drens emotional and social well-being. Many
single parents, however, find it difficult to
function effectively as parents. Compared
with continuously married parents, they are
less emotionally supportive of their children,
have fewer rules, dispense harsher discipline,
are more inconsistent in dispensing disci-
pline, provide less supervision, and engage in
more conflict with their children.
46
Many of
these deficits in parenting presumably result
from struggling to make ends meet with lim-
ited financial resources and trying to raise
children without the help of the other biolog-
ical parent. Many studies link inept parenting
by resident single parents with a variety of
negative outcomes among children, including
poor academic achievement, emotional prob-
lems, conduct problems, low self-esteem, and
problems forming and maintaining social re-
lationships. Other studies show that depres-
sion among custodial mothers, which usually
detracts from effective parenting, is related
to poor adjustment among offspring.
47
Although the role of the resident parent (usu-
ally the mother) in promoting childrens well-
being is clear, the nonresident parent (usually
the father) can also play an important role. In
a meta-analysis of sixty-three studies of non-
resident fathers and their children, Joan
Gilbreth and I found that children had
higher academic achievement and fewer
emotional and conduct problems when non-
resident fathers were closely involved in their
lives.
48
We also found that studies of nonresi-
dent fathers in the 1990s were more likely
than earlier studies to report positive effects
of father involvement. Nonresident fathers
may thus be enacting the parent role more
successfully now than in the past, with bene-
ficial consequences for children. Neverthe-
less, analysts consistently find that many non-
resident fathers are minimally engaged with
their children. Between one-fourth and one-
third of nonresident fathers maintain fre-
quent contact with their children, and a
roughly equal share of fathers maintains little
or no contact.
49
Interviews with children re-
veal that losing contact with fathers is one of
the most painful outcomes of divorce.
50
Children also thrive when their parents have a
cooperative co-parental relationship. When
parents agree on the rules and support one
anothers decisions, children learn that
parental authority is not arbitrary. Parental
agreement also means that children are not
subjected to inconsistent discipline when they
VOL . 15 / NO. 2 / FAL L 2005 83
Regardless of family
structure, the quality of
parenting is one of the
best predictors of childrens
emotional and social
well-being.
SER 604
misbehave. Consistency between parents
helps children to learn and internalize social
norms and moral values. Another benefit of a
positive co-parental relationship is the model-
ing of interpersonal skills, such as showing re-
spect, communicating clearly, and resolving
disputes through negotiation and compro-
mise. Children who learn these skills by ob-
serving their parents have positive relation-
ships with peers and, later, with intimate
partners. When childrens parents live in sep-
arate households, however, cooperative co-
parenting is not the norm. Although some
parents remain locked in conflict for many
years, especially if a divorce is involved, most
gradually disengage and communicate little
with one another. At best, most children living
with single parents experience parallel par-
enting rather than cooperative co-parenting.
51
Exposure to Stress
Children living with single parents are ex-
posed to more stressful experiences and cir-
cumstances than are children living with con-
tinuously married parents. Although scholars
define stress in somewhat different ways,
most assume that it occurs when external de-
mands exceed peoples coping resources.
This results in feelings of emotional distress,
a reduced capacity to function in school,
work, and family roles, and an increase in
physiological indicators of arousal.
52
Eco-
nomic hardship, inept parenting, and loss of
contact with a parent (as noted earlier) can
be stressful for children. Observing conflict
and hostility between resident and nonresi-
dent parents also is stressful.
53
Conflict be-
tween nonresident parents appears to be par-
ticularly harmful when children feel that they
are caught in the middle, as when one parent
denigrates the other parent in front of the
child, when children are asked to transmit
critical or emotionally negative messages
from one parent to the other, and when one
parent attempts to recruit the child as an ally
against the other.
54
Interparental conflict is a
direct stressor for children, and it can also in-
terfere with their attachments to parents, re-
sulting in feelings of emotional insecurity.
55
Moving is a difficult experience for many
children, especially when it involves losing
contact with neighborhood friends. More-
over, moves that require changing schools
can put children out of step with their class-
mates in terms of the curriculum. Children
with single parents move more frequently
than other children do, partly because of eco-
nomic hardship (which forces parents to seek
less expensive accommodation in other areas)
and partly because single parents form new
romantic attachments (as when a single
mother marries and moves in with her new
husband). Studies show that frequent moving
increases the risk of academic, behavioral,
and emotional problems for children with
single parents.
56
For many children, as noted,
the addition of a stepparent to the household
is a stressful change. And when remarriages
end in divorce, children are exposed to yet
more stressful transitions. Indeed, some
studies indicate that the number of transi-
tions that children experience while growing
up (including multiple parental divorces, co-
habitations, and remarriages) is a good pre-
dictor of their behavioral and emotional
problems as adolescents and young adults.
57
Pa ul R. Ama t o
Conflict between nonresident
parents appears to be
particularly harmful when
children feel that they are
caught in the middle.
SER 605
The Selection Perspective
Explanations that focus on economic hard-
ship, the quality of parenting, and exposure
to stress all assume that the circumstances as-
sociated with living in a single-parent house-
hold negatively affect childrens well-being. A
quite different explanationand the main al-
ternative to these viewsis that many poorly
adjusted individuals either never marry in the
first place or see their marriages end in di-
vorce. In other words, these people carry
traits that select them into single parent-
hood. Parents can transmit these problematic
traits to their children either through genetic
inheritance or inept parenting. For example,
a mother with an antisocial personality may
pass this genetic predisposition to her chil-
dren. Her personality also may contribute to
her marriages ending in divorce. Her chil-
dren will thus be at risk of exhibiting antiso-
cial behavior, but the risk has little to do with
the divorce. The discovery that concordance
(similarity between siblings) for divorce
among adults is higher among identical than
fraternal twins suggests that genes may pre-
dispose some people to engage in behaviors
that increase the risk of divorce.
58
If parents
personality traits and other genetically trans-
mitted predispositions are causes of single
parenthood as well as childhood problems,
then the apparent effects on children of
growing up with a single parent are spurious.
Because researchers cannot conduct a true
experiment and randomly allocate children
to live with single or married parents, it is
difficult to rule out the selection perspec-
tive. Nevertheless, many studies cast doubt
on it. For example, some have found signifi-
cant differences between children with di-
vorced and continuously married parents
even after controlling for personality traits
such as depression and antisocial behavior
in parents.
59
Others have found higher rates
of problems among children with single par-
ents, using statistical methods that adjust for
unmeasured variables that, in principle,
should include parents personality traits as
well as many genetic influences.
60
And a few
studies have found that the link between
parental divorce and childrens problems is
similar for adopted and biological chil-
drena finding that cannot be explained by
genetic transmission.
61
Another study, based
on a large sample of twins, found that grow-
ing up in a single-parent family predicted
depression in adulthood even with genetic
resemblance controlled statistically.
62
Al-
though some degree of selection still may be
operating, the weight of the evidence
strongly suggests that growing up without
two biological parents in the home increases
childrens risk of a variety of cognitive, emo-
tional, and social problems.
Implications of Policies to
Increase the Share of Children
in Two-Parent Families
Since social science research shows so clearly
the advantages enjoyed by children raised by
continuously married parents, it is no wonder
that policymakers and practitioners are inter-
ested in programs to strengthen marriage and
increase the proportion of children who grow
up in such families. Realistically speaking,
what could such programs accomplish? In
what follows, I present estimates of how they
could affect the share of children in the
United States who experience various types
of problems during adolescence.
Adolescent Family Structure and
Well-Being in the Add Health Study
To make these estimates, I used the Adoles-
cent Health Studya national long-term
sample of children in junior high and high
schoolsrelying on data from Wave I, con-
ducted in 1995. Table 1 is based on adoles-
VOL . 15 / NO. 2 / FAL L 2005 85
SER 606
cents responses to questions about behav-
ioral, emotional, and academic problems
specifically, whether they had repeated a
grade, been suspended from school, engaged
in delinquent behavior, engaged in a violent
altercation, received counseling or therapy
for an emotional problem, smoked cigarettes
regularly during the last month, thought
about suicide, or attempted suicide. Delin-
quency involved damaging property, shoplift-
ing, breaking into a house or building to steal
something, stealing something worth more
than $50, or taking a car without the owners
permission. Violence was defined as engaging
in a physical fight as a result of which the op-
ponent had received medical attention (in-
cluding bandaging a cut) or a fight involving
multiple people or using a weapon to
threaten someone. The results are based on
responses from more than 17,000 children
between the ages of twelve and eighteen, and
the data have been weighted to make them
nationally representative.
63
Responses are shown separately for adoles-
cents living with continuously married par-
ents and for those living with one parent only.
The results are striking. Adolescents living
with single parents consistently report en-
countering more problems than those living
with continuously married parents. Thirty
percent of the former reported that they had
repeated a grade, as against 19 percent of the
latter. Similarly, 40 percent of children living
with single parents reported having been sus-
pended from school, compared with 21 per-
cent of children living with continuously mar-
ried parents. Children in stable, two-parent
families also were less likely to have engaged
in delinquency or violence, seen a therapist
for an emotional problem, smoked during the
previous month, or thought about or at-
tempted suicide. These findings are consis-
tent with research demonstrating that chil-
dren living with continuously married
parents report fewer problems than do other
children. The increase in risk associated with
living without both parents ranged from
about 23 percent (for being involved in a vio-
lent altercation) to 127 percent (for receiving
emotional therapy).
To estimate the frequency of these problems
in the larger population, I relied on the Add
Pa ul R. Ama t o
Table 1. Family Structure and Adolescent Well-Being: Share of Adolescents Reporting
Problems in Various Scenarios
Percent
Family structure, 1995 Estimated share if family structure were the same as in
Problem Two parents One parent Combined 1980 1970 1960
Repeated grade 18.8 30.3 24.0 22.9 21.8 21.4
Suspended from school 21.2 39.8 29.6 27.9 26.0 25.4
Delinquency 36.4 44.7 40.1 39.4 38.5 38.3
Violence 36.0 44.1 39.6 38.9 38.1 37.8
Therapy 7.5 17.0 11.8 10.9 9.9 9.6
Smoked in last month 13.4 22.6 17.5 16.7 15.8 15.5
Thought of suicide 11.3 14.5 12.7 12.5 12.1 12.0
Attempted suicide 1.7 2.8 2.2 2.1 2.0 1.9
Source: National Study of Adolescent Health, 1995. See text for details.
SER 607
Health finding that 55 percent of adolescents
between the ages of twelve to eighteen lived
with both biological parents at the time of the
survey. Given that rates of divorce and non-
marital births have not changed much since
the mid-1990s, this figure is probably close to
the current figure, and it is nearly identical to
the estimate provided by Susan Brown from
the 1999 National Survey of American Fami-
lies. (Because most children in the sample
were younger than eighteen and could still
experience a parental divorce or death before
reaching adulthood, these results are consis-
tent with the projection that about half of all
children will live continuously with both bio-
logical parents until adulthood.) The third
column in table 1 shows the estimated share
of adolescents in the U.S. population who ex-
perience each problem, based on the data in
the first two columns.
64
How would increasing the share of children
growing up in stable, two-parent families af-
fect the overall levels of these problems in
the population? To provide estimates, I con-
sidered three levels of social change. The
fourth column in table 1 provides estimates
of adolescent outcomes if the share of adoles-
cents living with two biological parents were
the same as it was in 1980, the year in which
the share of marriages ending in divorce
reached its peak but before the large increase
in nonmarital births during the 1980s and
early 1990s. The fifth column provides esti-
mates of adolescent outcomes if the share of
adolescents living with continuously married
parents were the same as it was in 1970, the
year just before the massive increase in di-
vorce rates during the 1970s. The final col-
umn provides estimates of adolescent out-
comes if the share of adolescents living with
continuously married parents were the same
as it was in 1960, a period of relative family
stability in the United States.
65
Column four shows that if the share of ado-
lescents living with two biological parents
were the same today as it was in 1980, the
share of adolescents repeating a grade would
fall from 24 percent to about 23 percent.
Similarly, if the share of adolescents living
with two biological parents returned to its
1970 level, the share of adolescents repeating
a grade would fall to about 22 percent. Fi-
nally, if the share of adolescents living with
two biological parents increased to its 1960
level, the share of adolescents repeating a
grade would fall to 21 percent.
How is it that increasing the share of children
growing up with continuously married par-
ents has such a relatively small effect on the
share of children experiencing these prob-
lems? The explanation is that many children
living with continuously married parents also
experience these problems. In general, these
findings, which are likely to disappoint some
readers, are consistent with a broad, sociolog-
ical understanding of human behavior. Most
behaviors are determined by numerous so-
cial, cultural, individual, and biological fac-
tors. No single variable, such as family struc-
ture, has a monolithic effect on childrens
development and behavior. Although increas-
ing the share of children growing up in sta-
ble, two-parent families would lower the inci-
dence of all the problems shown in table 1,
clearly it is not a panacea for the problems
confronting our nations youth.
Individual versus Public Health
Perspectives
Whether one views the estimated changes in
table 1 as small or big depends in large part
on whether one adopts an individual perspec-
tive or a public health perspective. Attempts
during the past twenty years by public health
authorities to address cholesterol-related
health problems help to illustrate this distinc-
VOL . 15 / NO. 2 / FAL L 2005 87
SER 608
tion. Many epidemiological and clinical stud-
ies have shown that a high level of blood cho-
lesterol is a risk factor for cardiovascular dis-
ease. How large is the estimated effect of
cholesterol on cardiovascular disease? Con-
sider a group of male nonsmokers age fifty
with normal blood pressure. Men in this
group with high total cholesterol (defined as
250 mg/dL) have a 7 percent chance of suf-
fering a heart attack during the next decade.
In comparison, men in this group with low
total cholesterol (defined as 190 mg/dL) have
only a 4 percent chance. In other words, de-
creasing total cholesterol from a dangerous
level to a safe level would lower the risk of
having a heart attack for men in this group by
3 percentage points. Based on projections
like these, public health authorities have en-
couraged people with high cholesterol to
lower their cholesterol by eating fewer foods
high in saturated fat and cholesterol, losing
weight, and exercising more often. Physicians
often recommend supplementing these
lifestyle changes with cholesterol-lowering
medications, such as statin drugs.
66
Seen from a different perspective, however,
93 percent of men age fifty with high total
cholesterol will not suffer a heart attack in
the next decade. There are only 7 chances in
100 that a particular man will have a heart at-
tack, and even if he lowers his cholesterol, he
still has 4 chances in 100 of suffering a heart
attack. In other words, all the required
changes in lifestyle, plus the use of medica-
tions, will lower his chances of a heart attack
by only 3 chances out of 100. An individual
man with high cholesterol, therefore, may
well wonder if is worth the effort to change
his lifestyle and take medication. At the pop-
ulation level, however, with more than 9 mil-
lion men in the United States in their early
fifties, a 3 percentage point reduction in
heart attacks would be seen as a major public
health achievement, because it would mean a
quarter of a million fewer heart attacks in this
group over a decade.
67
The cholesterol example is relevant to under-
standing the effects of growing up without
both parents in the household. The increase
in the risk of cardiovascular disease associ-
ated with high blood cholesterol is compara-
ble in many respects to the increase in the
risk of behavioral, emotional, and academic
problems associated with growing up in a sin-
gle-parent household. For example, the in-
crease in heart attacks associated with high
blood cholesterol represents a 75 percent in-
crease in risk([7 4]/4) x 100a figure
comparable to the increased risk associated
with single parenthood and repeating a
grade, being suspended from school, receiv-
ing therapy, or attempting suicide. Adopting
a public health view and considering the
number rather than the percentage of adoles-
cents who might be affected helps put these
findings in perspective.
In 2002 there were about 29 million children
in the United States between the ages of
twelve and eighteenthe age range covered
in table 1.
68
Table 2 indicates that nearly 7
million children in this age group will have
repeated a grade. Increasing the share of
adolescents living with two biological parents
to the 1980 level, as illustrated in the second
column of the table, suggests that some
300,000 fewer children would repeat a grade.
Correspondingly, increasing the share of ado-
lescents living with two biological parents to
the 1970 level, as illustrated in the third col-
umn, would mean that 643,264 fewer chil-
dren would repeat a grade. Finally, increasing
the share of adolescents in two-parent fami-
lies to the 1960 level suggests that nearly
three-quarters of a million fewer children
would repeat a grade. Similarly, increasing
Pa ul R. Ama t o
SER 609
marital stability to its 1980 level would result
in nearly half a million fewer children sus-
pended from school, about 200,000 fewer
children engaging in delinquency or violence,
a quarter of a million fewer children receiv-
ing therapy, about a quarter of a million
fewer smokers, about 80,000 fewer children
thinking about suicide, and about 28,000
fewer children attempting suicide. Seen from
this perspective, restoring family stability to
levels of a few decades ago could dramati-
cally affect the lives of many children. More-
over, although the estimated decline in the
share of children encountering these prob-
lems in table 1 is modest, increasing the
number of children growing up with both
parents would simultaneously improve all
these outcomes, as well as many other out-
comes not considered in these tables.
General Conclusion
My goal in this paper has been to inform the
marriage debate by addressing three funda-
mental questions. First, how do children in
households with only one biological parent
differ from children in households with both
biological parents, in terms of their cognitive,
social, and emotional well-being? Research
clearly demonstrates that children growing
up with two continuously married parents are
less likely than other children to experience a
wide range of cognitive, emotional, and social
problems, not only during childhood, but also
in adulthood. Although it is not possible to
demonstrate that family structure is the
cause of these differences, studies that have
used a variety of sophisticated statistical
methods, including controls for genetic fac-
tors, suggest that this is the case. This distinc-
tion is even stronger if we focus on children
growing up with two happily married biolog-
ical parents.
Second, what accounts for the observed dif-
ferences between these two groups of chil-
dren? Compared with other children, those
who grow up in stable, two-parent families
have a higher standard of living, receive more
effective parenting, experience more cooper-
ative co-parenting, are emotionally closer to
both parents (especially fathers), and are sub-
jected to fewer stressful events and circum-
stances.
And third, how might current policies to
strengthen marriage, decrease the rate of di-
vorce, and lower nonmarital fertility affect
the overall well-being of American children?
VOL . 15 / NO. 2 / FAL L 2005 89
Table 2. Well-Being of Adolescents Aged Twelve to Eighteen, 2002 Estimates
Estimated change based on two-parent families in
Problem 2002 estimate 1980 1970 1960
Repeated grade 6,948,530 299,968 643,264 746,587
Suspended from school 8,570,096 485,165 1,040,410 1,207,523
Delinquency 11,632,086 216,498 464,269 538,841
Violence 11,490,072 211,282 453,082 525,857
Therapy 3,412,678 247,799 531,392 616,745
Smoked in last month 5,083,513 239,974 514,611 597,269
Thought of suicide 3,692,358 83,469 178,995 207,746
Attempted suicide 636,164 28,693 61,530 71,413
Source: Authors estimates based on data from the National Study of Adolescent Health, 1995. See text for details.
SER 610
The projections in tables 1 and 2 suggest that
increasing the share of children who grow up
with continuously married parents would
improve the overall well-being of U.S. chil-
dren only modestly. The improvements are
relatively small because problems such as
being suspended from school, engaging in
delinquent behavior, and attempting suicide
have many causes, with family structure
being but one.
What are the policy implications of these
findings? First, interventions that increase
the share of children growing up with two
continuously married biological parents will
have modest effects on the percentage of
U.S. children experiencing various problems,
but could have substantial effects on the
number of children experiencing them. From
a public health perspective, even a modest
decline in percentages, when multiplied by
the large number of children in the popula-
tion, represents a substantial social benefit.
That children living in stepfamilies do not
tend to have better outcomes, on average,
than children growing up in single-parent
families suggests that interventions to
strengthen marital quality and stability would
be most profitable if focused on parents in
first marriages. Similarly, interventions to
strengthen relationships and encourage mar-
riage among cohabiting couples with children
would be most profitable if focused on cou-
ples with a first child, rather than couples
with children from prior relationships.
U.S. policymakers also should acknowledge
that returning to substantially lower rates of
divorce and nonmarital childbearing, al-
though a worthwhile goal, is not realistic, at
least in the short term. Although policy inter-
ventions may lower the rate of divorce and
nonmarital childbearing, many children will
continue to grow up with a single parent.
This stubborn fact means that policies for im-
proving childrens well-being cannot focus
exclusively on promoting marriage and
strengthening marital stability. These policies
must be supplemented by others that im-
prove economic well-being, strengthen par-
ent-child bonds, and ease the stress experi-
enced by children in single-parent and
stepparent households. Such programs would
provide parent education classes for divorc-
ing parents, increase the minimum wage and
the earned income tax credit for poor work-
ing parents, establish paternity and increase
the payment of child support, and improve
the quantity and quality of time that nonresi-
dent parents, especially fathers, spend with
their children.
The importance of increasing the number of
children growing up with two happily and
continuously married parents and of improv-
ing the well-being of children now living in
other family structures is self-evident. Chil-
dren are the innocent victims of their par-
ents inability to maintain harmonious and
stable homes. The importance of effective
policies will become even clearer in the near
future, as the baby boom generation reaches
retirement age. As this happens, our society
will become increasingly dependent on the
emotional functioning, economic productiv-
ity, and leadership of a declining number of
young adults. Although it is a clich to say
that children are the future, it has never been
as true as it is today.
Pa ul R. Ama t o
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Endnotes
1. For examples, see Sheldon Glueck and Eleanor Glueck, Family Environment and Delinquency (Boston:
Houghton Mifflin, 1962); J. F. McDermott, Divorce and Its Psychiatric Sequelae in Children, Archives of
General Psychiatry 23 (1970): 42127.
2. Judith S. Wallerstein and Joan B. Kelly, Surviving the Breakup: How Children and Parents Cope with Di-
vorce (New York: Basic Books, 1980).
3. E. Mavis Hetherington, Divorce: A Childs Perspective, American Psychologist 34 (1979): 85158; E.
Mavis Hetherington, Martha Cox, and R. Cox, Effects of Divorce on Parents and Children, in Nontradi-
tional Families, edited by Michael Lamb (Hillsdale, N.J.: Lawrence Erlbaum, 1982), pp. 23388.
4. The effect size for a study is defined as the standardized mean difference on some outcome between two
groups of interest, that is, (
x
1
x
2
)/S
pooled
. For information on meta-analysis, see Harris M. Cooper and
Larry V. Hedges, eds., The Handbook of Research Synthesis (New York: Russell Sage, 1994).
5. Paul R. Amato and Bruce Keith, Consequences of Parental Divorce for Childrens Well-Being: A Meta-
Analysis, Psychological Bulletin 10 (1991): 2646.
6. Paul R. Amato, Children of Divorce in the 1990s: An Update of the Amato and Keith (1991) Meta-
Analysis, Journal of Family Psychology 15 (2001): 35570.
7. Paul R. Amato and Alan Booth, A Generation at Risk: Growing Up in an Era of Family Upheaval (Harvard
University Press, 1997); Paul R. Amato and Juliana M. Sobolewski, The Effects of Divorce and Marital
Discord on Adult Childrens Psychological Well-Being, American Sociological Review 66 (2001): 90021;
William S. Aquilino, Impact of Childhood Family Disruption on Young Adults Relationships with Par-
ents, Journal of Marriage and the Family 56 (1994): 295313; Alan Booth and Paul R. Amato, Parental
Predivorce Relations and Offspring Postdivorce Well-Being, Journal of Marriage and the Family 63
(2001): 197212; Larry L. Bumpass, Theresa C. Martin, and James A. Sweet, The Impact of Family Back-
ground and Early Marital Factors on Marital Disruption, Journal of Family Issues 12 (1991): 2242; An-
drew J. Cherlin, P. Lindsay Chase-Lansdale, and Christine McRae, Effects of Divorce on Mental Health
throughout the Life Course, American Sociological Review 63 (1998): 23949; Sara McLanahan and Gary
Sandefur, Growing Up with a Single Parent: What Hurts, What Helps (Harvard University Press, 1994);
Lawrence L. Wu and B. C. Martinson, Family Structure and the Risk of a Premarital Birth, American So-
ciological Review 58 (1993): 21032.
8. McLanahan and Sandefur, Growing Up with a Single Parent (see note 7); Paul R. Amato, Parental Ab-
sence during Childhood and Adult Depression, Sociological Quarterly 32 (1991): 54356; Paul R. Amato
and Bruce Keith, Separation from a Parent during Childhood and Adult Socioeconomic Attainment, So-
cial Forces 70 (1991): 187206; William Aquilino, The Life Course of Children Born to Unmarried Moth-
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(1996): 293310; Robert Haveman, Barbara Wolf, and Karen Pence, Intergenerational Effects of Non-
marital and Early Childbearing, in Out of Wedlock: Causes and Consequences of Nonmarital Fertility, ed-
ited by Lawrence L. Wu and Barbara Wolfe (New York: Russell Sage Foundation, 2001), pp. 287316; Jay
D. Teachman, Childhood Living Arrangements and the Intergenerational Transmission of Divorce, Jour-
nal of Marriage and Family 64 (2002): 71729; Jay D. Teachman, The Childhood Living Arrangements of
Children and the Characteristics of Their Marriages, Journal of Family Issues 25 (2004): 8696.
VOL . 15 / NO. 2 / FAL L 2005 91
SER 612
9. McLanahan and Sandefur, Growing Up with a Single Parent (see note 7).
10. Amato, Parental Absence during Childhood and Adult Depression (see note 8); Amato and Keith Sepa-
ration from a Parent (see note 8); Teachman, Childhood Living Arrangements (see note 8).
11. Larry L. Bumpass and Hsien-Hen Lu, Trends in Cohabitation and Implications for Childrens Family
Contexts in the United States, Population Studies 54 (2000): 2941; Sara McLanahan and others, Unwed
Parents or Fragile Families? Implications for Welfare and Child Support Policy, in Out of Wedlock:
Causes and Consequences of Nonmarital Fertility, edited by Lawrence L. Wu and Barbara Wolfe (New
York: Russell Sage Foundation, 2001), pp. 20228.
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Cohabitation versus Marriage: A Comparison of Relationship Quality, Journal of Marriage and the Fam-
ily 58 (1996): 66878; Judith Seltzer, Families Formed outside of Marriage, Journal of Marriage and the
Family 62 (2000): 124768.
13. Susan Brown, Family Structure and Child Well-Being: The Significance of Parental Cohabitation, Jour-
nal of Marriage and the Family 66 (2004): 35167. For a general review of this literature, see Wendy Man-
ning, The Implications of Cohabitation for Childrens Well-Being, in Just Living Together: Implications of
Cohabitation for Families, Children, and Social Policy, edited by Alan Booth and Ann Crouter (Mahwah,
N.J.: Lawrence Erlbaum Associates, 2002), pp. 21152.
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Marriage and the Family 54 (1992): 91224; Wendy Manning, Pamela Smock, and Debarun Majumdar,
The Relative Stability of Marital and Cohabiting Unions for Children, Population Research and Policy
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Fragile Families Research Brief, no. 4 (Bendheim-Thoman Center for Research on Child Wellbeing,
Princeton University, January 2003); see also Sara McLanahan, Diverging Destinies: How Children Are
Faring under the Second Demographic Transition, Demography 41 (2004): 60627.
16. Lawrence L. Wu, Larry L. Bumpass, and Kelly Musick, Historical and Life Course Trajectories of Non-
marital Childbearing, in Out of Wedlock: Causes and Consequences of Nonmarital Fertility, edited by
Lawrence L. Wu and Barbara Wolfe (New York: Russell Sage Foundation, 2001), pp. 348.
17. Brown, Family Structure and Child Well-Being (see note 13).
18. The Add Health study was designed by J. Richard Udry, Peter S. Bearman, and Kathleen Mullan Harris
and funded by grant R01-HD31921 from the NICHD, with cooperative funding from seventeen other
agencies. Ronald R. Rindfuss and Barbara Entwisle provided assistance in the original study design. The
analysis was conducted for this paper.
19. Amato and Keith, Consequences of Parental Divorce (see note 5).
21. Amato and Keith, Separation from a Parent (see note 8).
Pa ul R. Ama t o
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22. Amato, Parental Absence (see note 8).
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Parent-Child Relationships, and Behavior Problems in Children, Journal of Marriage and the Family 49
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Being, Social Forces 76 (1998): 90535; Thomas L. Hanson, Does Parental Conflict Explain Why Di-
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ter or for Worse: Divorce Reconsidered (New York: Norton, 2002).
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30. Phyllis Bronstein and others, Fathering after Separation or Divorce: Factors Predicting Childrens Adjust-
ment, Family Relations 43 (1994): 46979; Margaret Crosbie-Burnett and Jean Giles-Sims, Adolescent
Adjustment and Stepparenting Styles, Family Relations 43 (1994): 39499; Lynn White and Joan G.
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Fathers on Adolescent Outcomes, Journal of Marriage and Family 63 (2001): 15567.
31. Christine M. Buchanan, Eleanor E. Maccoby, and Sanford M. Dornbusch, Adolescents after Divorce (Har-
vard University Press, 1996).
32. Mignon R. Moore and P. L. Chase-Lansdale, Sexual Intercourse and Pregnancy among African-American
Girls in High-Poverty Neighborhoods: The Role of Family and Perceived Community Environment, Jour-
nal of Marriage and the Family 63 (2001): 114657; Sandi Nelson, Rebecca L. Clark, and Gregory Acs, Be-
yond the Two-Parent Family: How Teenagers Fare in Cohabiting Couple and Blended Families, series B,
no. B-31 (Washington: Urban Institute, 2001).
33. Brown, The Effect of Union Type (see note 12).
VOL . 15 / NO. 2 / FAL L 2005 93
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34. Hetherington, Cox, and Cox, Effects of Divorce (see note 3).
35. Amato and Keith, Consequences of Parental Divorce (see note 5).
36. Amato, Children of Divorce (see note 6).
37. E. Mavis Hetherington, K. A. Camara, and David L. Featherman, Achievement and Intellectual Func-
tioning of Children in One-Parent Households, in Achievement and Achievement Motives, edited by J. T.
Spence (San Francisco: W. H. Freeman, 1983).
38. Amato and Keith, Separation from a Parent (see note 8).
40. Amato, Parental Absence (see note 8).
42. Moore and Chase-Lansdale, Sexual Intercourse and Pregnancy (see note 32).
43. Nelson, Clark, and Acs, Beyond the Two-Parent Family (see note 32).
44. McLanahan and Sandefur, Growing Up with a Single Parent (see note 7); Robert H. Aseltine, Pathways
Linking Parental Divorce with Adolescent Depression, Journal of Health and Social Behavior 37 (1996):
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Being: A Prospective Analysis, Journal of Marriage and the Family 57 (1995): 80012; Ronald L. Simons
and Associates, Understanding Differences between Divorced and Intact Families (Thousand Oaks, Calif.:
Sage, 1996).
45. Valarie King, Nonresident Father Involvement and Child Well-Being: Can Dads Make a Difference?
Journal of Family Issues 15 (1994): 7896; Sara McLanahan and others, Child Support Enforcement and
Child Well-Being: Greater Security or Greater Conflict? in Child Support and Child Well-Being, edited
by Irwin Garfinkel, Sara McLanahan, and Philip K. Robins (Washington: Urban Institute Press, 1996), pp.
23956.
46. Hetherington and Clingempeel, Coping with Marital Transitions (see note 26); Simons and Associates,
Understanding Differences (see note 44); Nan Astone and Sara S. McLanahan, Family Structure, Parental
Practices, and High School Completion, American Sociological Review 56 (1991): 30920; Elizabeth
Thomson and others, Family Structure, Gender, and Parental Socialization, Journal of Marriage and the
Family 54 (1992): 36878.
47. McLanahan and Sandefur, Growing Up with a Single Parent (see note 7); Hetherington and Clingempeel,
Coping with Marital Transition (see note 26); Buchanan, Maccoby, and Dornbusch, Adolescents after Di-
vorce (see note 31); Simons and Associates, Understanding Differences (see note 44).
48. Paul R. Amato and Joan Gilbreth, Nonresident Fathers and Childrens Well-Being: A Meta-Analysis,
Journal of Marriage and the Family 61 (1999): 55773.
49. Paul R. Amato and Juliana Sobolewski, The Effects of Divorce on Fathers and Children: Nonresidential
Fathers and Stepfathers, in The Role of the Father in Child Development, edited by Michael Lamb, 4th
ed. (Hillsdale, N.J.: Erlbaum, 2003), pp. 34167.
Pa ul R. Ama t o
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50. W. V. Fabricius, Listening to Children of Divorce: New Findings that Diverge from Wallerstein, Lewis,
and Blakeslee, Family Relations 52 (2003): 38594.
51. Frank F. Furstenberg and Andrew Cherlin, Divided Families: What Happens to Children When Parents
Part (Harvard University Press, 1991).
52. L. I. Pearlin and others, The Stress Process, Journal of Health and Social Behavior 22 (1981): 33756;
Peggy A. Thoits, Stress, Coping, and Social Support Processes: Where Are We? What Next? Journal of
Health and Social Behavior, extra issue (1995): 5379.
53. Buchanan, Maccoby, and Dornbusch, Adolescents after Divorce (see note 31); Jeanne M. Tschann and oth-
ers, Conflict, Loss, Change and Parent-Child Relationships: Predicting Childrens Adjustment during Di-
vorce, Journal of Divorce and Remarriage 13 (1999): 122; Elizabeth A. Vandewater and Jennifer E. Lans-
ford, Influences of Family Structure and Parental Conflict on Childrens Well-Being, Family Relations 47
(1998): 32330.
54. Buchanan, Maccoby, and Dornbusch, Adolescents after Divorce (see note 31).
55. Patrick T. Davies and E. Mark Cummings, Marital Conflict and Child Adjustment: An Emotional Security
Hypothesis, Psychological Bulletin 116 (1994): 387411.
56. McLanahan and Sandefur, Growing Up with a Single Parent (see note 7); Aseltine, Pathways (see note
44); Simons and Associates, Understanding Differences (see note 44); Buchanan, Maccoby, and Dorn-
busch, Adolescents after Divorce (see note 31); Michael S. Ellwood and Arnold L. Stolberg, The Effects of
Family Composition, Family Health, Parenting Behavior and Environmental Stress on Childrens Divorce
Adjustment, Journal of Child and Family Studies 2 (1993): 2336; Irwin Sandler and others, Stability and
Quality of Life Events and Psychological Symptomatology in Children of Divorce, American Journal of
Community Psychology 19 (1991): 50120; Jay D. Teachman, Kathleen Paasch, and Karen Carver, Social
Capital and Dropping Out of School Early, Journal of Marriage and the Family 58 (1996): 77383.
57. Wu and Martinson, Family Structure (see note 7); Paul R. Amato, Reconciling Divergent Perspectives:
Judith Wallerstein, Quantitative Family Research, and Children of Divorce, Family Relations 52 (2003):
33239; Bryan Rodgers and Jan Pryor, Divorce and Separation: The Outcomes for Children (York, Eng-
land: Joseph Rowntree Foundation, 1998).
58. M. McGue and D. T. Lykken, Genetic Influence on Risk of Divorce, Psychological Science 3 (1992):
36873; V. Jockin, M. McGue, and D. T. Lykken, Personality and Divorce: A Genetic Analysis, Journal of
Personality and Social Psychology 71 (1996): 28899. For a strong statement of this position, see Judith
Harris, The Nurture Assumption: Why Children Turn Out the Way They Do (New York: Touchstone,
1999).
59. Simons and Associates, Understanding Differences (see note 44); Amato, Reconciling Divergent Perspec-
tives (see note 57).
60. See note 7. Cherlin and others used a fixed-effects model, which eliminates all unmeasured variables that
do not change over time. McLanahan and Sandefur relied on biprobit analysis, a method that makes it pos-
sible to correlate error terms across equations, which is equivalent to adjusting for unmeasured variables
that could affect family structure as well as childrens outcomes.
VOL . 15 / NO. 2 / FAL L 2005 95
SER 616
61. David Brodzinsky, Jennifer C. Hitt, and Daniel Smith, Impact of Parental Separation and Divorce on
Adopted and Nonadopted Children, American Journal of Orthopsychiatry 63 (1993): 45161; Thomas G.
OConnor and others, Are Associations between Parental Divorce and Childrens Adjustment Genetically
Mediated? An Adoption Study, Developmental Psychology 36 (2000): 42937.
62. K. S. Kendler and others, Childhood Parental Loss and Adult Psychopathology in Women, Archives of
General Psychiatry 49 (1992): 10916.
63. In this analysis, I considered adoptive parents to be the same as biological parents. The one parent cate-
gory includes adolescents living with one biological parent and a stepparent (or a cohabiting partner of the
parent). This category also includes a small percentage of children living with neither parent at the time of
the interview. I used logistic regression analysis to adjust the percentages in table 1 for variables that could
be associated with family structure as well as child outcomes: mothers education, fathers education, childs
race (white, black, Latino, or other), childs age, childs gender, and whether the child was born in the
United States. All of the differences reported in table 1 were statistically significant at p < .01.
64. The margin of error for these estimates, based on a 95 percent confidence interval, is about 1 percent.
65. To estimate the percentage of adolescents between the ages of thirteen and eighteen living with two bio-
logical parents in 1980, 1970, and 1960, I relied on retrospective data from the 1988 wave of the National
Survey of Families and Households. The resulting figures are 64 percent, 74 percent, and 77 percent, re-
spectively. The margin of error for these estimates, based on a 95 percent confidence interval, is about 2
percent. For details on the National Survey of Families and Households, see James Sweet, Larry Bumpass,
and Vaughn Call, The Design and Content of the National Survey of Families and Households, NSFH
Working Paper 1 (Center for Demography and Ecology, University of Wisconsin-Madison, 1988). These
estimates should not be equated with levels of program effectiveness, because it is naive to assume that
specific, short-term interventions could reverse family trends so strongly. It is possible, however, that a
range of interventions, combined with a shift in the larger culture, could result in substantial changes in
family structure over a decade or longer. Moreover, the figures used in table 1 are not completely unrealis-
tic, because they correspond to levels of family stability that actually existed in recent U.S. history. Note
also that these estimates are based only on changes in family structure and assume no changes in marital
quality in two-parent families. If future policies also are capable of improving the quality of existing mar-
riages, then the figures in tables 1 and 2 are underestimates of the total benefit to children.
66. The National Heart, Lung, and Blood Institute, High Blood Cholesterol: What You Need to Know, NIH
Publication 01-3290 (May 2001). See also F. B. Hu, J. E. Manson, and W. C. Willett, Types of Dietary Fat
and Risk of Coronary Heart Disease: A Critical Review, Journal of the American College of Nutrition 20
(2001): 519; S. Lewington and S. MacMahon, Blood Pressure, Cholesterol, and Common Causes of
Death: A Review, American Journal of Hypertension 12 (1999): 96S98S.
67. The estimates for ten-year risk of a heart attack vary with age and gender. The link between cholesterol and
cardiovascular disease is stronger for men than for women, and stronger for older individuals than for
younger individuals. The margin of error for these estimates, based on a 95 percent confidence interval, is
about 1 percent.
68. U.S. Bureau of the Census, Statistical Abstract of the United States (Government Printing Office, 2003),
table 11.
Pa ul R. Ama t o
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How different are the adult children of parents who have same-sex
relationships? Findings from the New Family Structures Study
Mark Regnerus
Department of Sociology and Population Research Center, University of Texas at Austin, 1 University Station A1700, Austin, TX 78712-0118, United States
a r t i c l e i n f o
Article history:
Received 1 February 2012
Revised 29 February 2012
Accepted 12 March 2012
Keywords:
Same-sex parenting
Family structure
Young adulthood
Sampling concerns
a b s t r a c t
The New Family Structures Study (NFSS) is a social-science data-collection project that
elded a survey to a large, random sample of American young adults (ages 1839) who
were raised in different types of family arrangements. In this debut article of the NFSS, I
compare how the young-adult children of a parent who has had a same-sex romantic rela-
tionship fare on 40 different social, emotional, and relational outcome variables when com-
pared with six other family-of-origin types. The results reveal numerous, consistent
differences, especially between the children of women who have had a lesbian relationship
and those with still-married (heterosexual) biological parents. The results are typically
robust in multivariate contexts as well, suggesting far greater diversity in lesbian-parent
household experiences than convenience-sample studies of lesbian families have revealed.
The NFSS proves to be an illuminating, versatile dataset that can assist family scholars in
understanding the long reach of family structure and transitions.
1. Introduction
The well-being of children has long been in the center of public policy debates about marriage and family matters in the
United States. That trend continues as state legislatures, voters, and the judiciary considers the legal boundaries of marriage.
Social science data remains one of the few sources of information useful in legal debates surrounding marriage and adoption
rights, and has been valued both by same-sex marriage supporters and opponents. Underneath the politics about marriage
and child development are concerns about family structures possible effects on children: the number of parents present and
active in childrens lives, their genetic relationship to the children, parents marital status, their gender distinctions or sim-
ilarities, and the number of transitions in household composition. In this introduction to the New Family Structures Study
(NFSS), I compare how young adults from a variety of different family backgrounds fare on 40 different social, emotional,
and relational outcomes. In particular, I focus on how respondents who said their mother had a same-sex relationship with
another womanor their father did so with another mancompare with still-intact, two-parent heterosexual married fam-
ilies using nationally-representative data collected from a large probability sample of American young adults.
Social scientists of family transitions have until recently commonly noted the elevated stability and social benets of the
two-parent (heterosexual) married household, when contrasted to single mothers, cohabiting couples, adoptive parents, and
ex-spouses sharing custody (Brown, 2004; Manning et al., 2004; McLanahan and Sandefur, 1994). In 2002, Child Trendsa
well-regarded nonpartisan research organizationdetailed the importance for childrens development of growing up in the
presence of two biological parents (their emphasis; Moore et al., 2002, p. 2). Unmarried motherhood, divorce, cohabitation,
and step-parenting were widely perceived to fall short in signicant developmental domains (like education, behavior prob-
lems, and emotional well-being), due in no small part to the comparative fragility and instability of such relationships.
0049-089X/$ - see front matter 2012 Elsevier Inc. All rights reserved.
http://dx.doi.org/10.1016/j.ssresearch.2012.03.009
E-mail address: regnerus@prc.utexas.edu
Social Science Research 41 (2012) 752770
Contents lists available at SciVerse ScienceDirect
Social Science Research
j our nal homepage: www. el sevi er . com/ l ocat e/ ssr esear ch
SER 618
In their 2001 American Sociological Review article reviewing ndings on sexual orientation and parenting, however, soci-
ologists Judith Stacey and Tim Biblarz began noting that while there are some differences in outcomes between children in
same-sex and heterosexual unions, there were not as many as family sociologists might expect, and differences need not
necessarily be perceived as decits. Since that time the conventional wisdom emerging from comparative studies of
same-sex parenting is that there are very few differences of note in the child outcomes of gay and lesbian parents (Tasker,
2005; Wainright and Patterson, 2006; Rosenfeld, 2010). Moreover, a variety of possible advantages of having a lesbian couple
as parents have emerged in recent studies (Crowl et al., 2008; Biblarz and Stacey, 2010; Gartrell and Bos, 2010; MacCallum
and Golombok, 2004). The scholarly discourse concerning gay and lesbian parenting, then, has increasingly posed a challenge
to previous assumptions about the supposed benets of being raised in biologically-intact, two-parent heterosexual
households.
1.1. Sampling concerns in previous surveys
Concern has arisen, however, about the methodological quality of many studies focusing on same-sex parents. In partic-
ular, most are based on non-random, non-representative data often employing small samples that do not allow for gener-
alization to the larger population of gay and lesbian families (Nock, 2001; Perrin and Committee on Psychosocial Aspects
of Child and Family Health, 2002; Redding, 2008). For instance, many published studies on the children of same-sex parents
collect data from snowball or convenience samples (e.g., Bos et al., 2007; Brewaeys et al., 1997; Fulcher et al., 2008; Sirota,
2009; Vanfraussen et al., 2003). One notable example of this is the National Longitudinal Lesbian Family Study, analyses of
which were prominently featured in the media in 2011 (e.g., Hufngton Post, 2011). The NLLFS employs a convenience sam-
ple, recruited entirely by self-selection from announcements posted at lesbian events, in womens bookstores, and in les-
bian newspapers in Boston, Washington, and San Francisco. While I do not wish to downplay the signicance of such a
longitudinal studyit is itself quite a featthis sampling approach is a problem when the goal (or in this case, the practical
result and conventional use of its ndings) is to generalize to a population. All such samples are biased, often in unknown
ways. As a formal sampling method, snowball sampling is known to have some serious problems, one expert asserts (Snij-
ders, 1992, p. 59). Indeed, such samples are likely biased toward inclusion of those who have many interrelationships with,
or are coupled to, a large number of other individuals (Berg, 1988, p. 531). But apart from the knowledge of individuals
inclusion probability, unbiased estimation is not possible.
Further, as Nock (2001) entreated, consider the convenience sample recruited from within organizations devoted to
seeking rights for gays and lesbians, like the NLLFS sampling strategy. Suppose, for example, that the respondents have
higher levels of education than comparable lesbians who do not frequent such events or bookstores, or who live else-
where. If such a sample is used for research purposes, then anything that is correlated with educational attainmentlike
better health, more deliberative parenting, and greater access to social capital and educational opportunities for children
will be biased. Any claims about a population based on a group that does not represent it will be distorted, since its sam-
ple of lesbian parents is less diverse (given what is known about it) than a representative sample would reveal (Baumle
et al., 2009).
To compound the problem, results from nonprobability samplesfrom which meaningful statistics cannot be generated
are regularly compared with population-level samples of heterosexual parents, which no doubt are comprised of a blend of
higher and lower quality parents. For example, Gartrell et al. (2011a,b) inquired about the sexual orientation and behavior of
adolescents by comparing data from the National Survey of Family Growth (NSFG) with those in the snowball sample of
youth in the NLLFS. Comparing a population-based sample (the NSFG) to a select sample of youth from same-sex parents
does not provide the statistical condence demanded of good social science. Until now, this has been a primary way in which
scholars have collected and evaluated data on same-sex parents. This is not to suggest that snowball samples are inherently
problematic as data-collection techniques, only that they are not adequate for making useful comparisons with samples that
are entirely different with regard to selection characteristics. Snowball and various other types of convenience sampling are
simply not widely generalizable or comparable to the population of interest as a whole. While researchers themselves com-
monly note this important limitation, it is often entirely lost in the translation and transmission of ndings by the media to
the public.
1.2. Are there notable differences?
The no differences paradigm suggests that children from same-sex families display no notable disadvantages when
compared to children from other family forms. This suggestion has increasingly come to include even comparisons with
intact biological, two-parent families, the form most associated with stability and developmental benets for children
(McLanahan and Sandefur, 1994; Moore et al., 2002).
Answering questions about notable between-group differences has nevertheless typically depended on with whom com-
parisons are being made, what outcomes the researchers explored, and whether the outcomes evaluated are considered sub-
stantial or supercial, or portents of future risk. Some outcomeslike sexual behavior, gender roles, and democratic
parenting, for examplehave come to be valued differently in American society over time.
For the sake of brevityand to give ample space here to describing the NFSSI will avoid spending too much time
describing previous studies, many of whose methodological challenges are addressed by the NFSS. Several review articles,
M. Regnerus / Social Science Research 41 (2012) 752770 753
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and at least one book, have sought to provide a more thorough assessment of the literature (Anderssen et al., 2002; Biblarz
and Stacey, 2010; Goldberg, 2010; Patterson, 2000; Stacey and Biblarz, 2001a). Sufce it to say that versions of the phrase
no differences have been employed in a wide variety of studies, reports, depositions, books, and articles since 2000 (e.g.,
Crowl et al., 2008; Movement Advancement Project, 2011; Rosenfeld, 2010; Tasker, 2005; Stacey and Biblarz, 2001a,b;
Veldorale-Brogan and Cooley, 2011; Wainright et al., 2004).
Much early research on gay parents typically compared the child development outcomes of divorced lesbian mothers
with those of divorced heterosexual mothers (Patterson, 1997). This was also the strategy employed by psychologist Fiona
Tasker (2005), who compared lesbian mothers with single, divorced heterosexual mothers and found no systematic differ-
ences between the quality of family relationships therein. Wainright et al. (2004), using 44 cases in the nationally-repre-
sentative Add Health data, reported that teenagers living with female same-sex parents displayed comparable self-
esteem, psychological adjustment, academic achievement, delinquency, substance use, and family relationship quality to
44 demographically matched cases of adolescents with opposite-sex parents, suggesting that here too the comparisons
were not likely made with respondents from stable, biologically-intact, married families.
However, small sample sizes can contribute to no differences conclusions. It is not surprising that statistically-signi-
cant differences would not emerge in studies employing as few as 18 or 33 or 44 cases of respondents with same-sex parents,
respectively (Fulcher et al., 2008; Golombok et al., 2003; Wainright and Patterson, 2006). Even analyzing matched samples,
as a variety of studies have done, fails to mitigate the challenge of locating statistically-signicant differences when the sam-
ple size is small. This is a concern in all of social science, but one that is doubly important when there may be motivation to
conrm the null hypothesis (that is, that there are in fact no statistically-signicant differences between groups). Therefore,
one important issue in such studies is the simple matter of if there is enough statistical power to detect meaningful differ-
ences should they exist. Rosenfeld (2010) is the rst scholar to employ a large, random sample of the population in order to
compare outcomes among children of same-sex parents with those of heterosexual married parents. He concludedafter
controlling for parents education and income and electing to limit the sample to households exhibiting at least 5 years of
co-residential stabilitythat there were no statistically-signicant differences between the two groups in a pair of measures
assessing childrens progress through primary school.
Sex-related outcomes have more consistently revealed distinctions, although the tone of concern about them has dimin-
ished over time. For example, while the daughters of lesbian mothers are now widely understood to be more apt to explore
same-sex sexual identity and behavior, concern about this nding has faded as scholars and the general public have become
more accepting of GLB identities (Goldberg, 2010). Tasker and Golombok (1997) noted that girls raised by lesbian mothers
reported a higher number of sexual partners in young adulthood than daughters of heterosexual mothers. Boys with lesbian
mothers, on the other hand, appear to display the opposite trendfewer partners than the sons of heterosexual mothers.
More recently, however, the tone about no differences has shifted some toward the assertion of differences, and that
same-sex parents appear to be more competent than heterosexual parents (Biblarz and Stacey, 2010; Crowl et al., 2008).
Even their romantic relationships may be better: a comparative study of Vermont gay civil unions and heterosexual mar-
riages revealed that same-sex couples report higher relationship quality, compatibility, and intimacy, and less conict than
did married heterosexual couples (Balsam et al., 2008). Biblarz and Staceys (2010) review article on gender and parenting
asserts that,
based strictly on the published science, one could argue that two women parent better on average than a woman and a
man, or at least than a woman and man with a traditional division of labor. Lesbian coparents seem to outperform com-
parable married heterosexual, biological parents on several measures, even while being denied the substantial privileges
of marriage (p. 17).
Even here, however, the authors note that lesbian parents face a somewhat greater risk of splitting up, due, they sug-
gest, to their asymmetrical biological and legal statuses and their high standards of equality (2010, p. 17).
Another meta-analysis asserts that non-heterosexual parents, on average, enjoy signicantly better relationships with
their children than do heterosexual parents, together with no differences in the domains of cognitive development, psycho-
logical adjustment, gender identity, and sexual partner preference (Crowl et al., 2008).
However, the meta-analysis reinforces the profound importance of who is doing the reportingnearly always volunteers
for small studies on a group whose claims about documentable parenting successes are very relevant in recent legislative
and judicial debates over rights and legal statuses. Tasker (2010, p. 36) suggests caution:
Parental self-report, of course, may be biased. It is plausible to argue that, in a prejudiced social climate, lesbian and gay
parents may have more at stake in presenting a positive picture. . ..Future studies need to consider using additional
sophisticated measures to rule out potential biases. . .
Sufce it to say that the pace at which the overall academic discourse surrounding gay and lesbian parents comparative
competence has shiftedfrom slightly-less adept to virtually identical to more adeptis notable, and rapid. By comparison,
studies of adoptiona common method by which many same-sex couples (but more heterosexual ones) become parents
have repeatedly and consistently revealed important and wide-ranging differences, on average, between adopted children
and biological ones. In fact, these differences have been so pervasive and consistent that adoption experts now emphasize
that acknowledgement of difference is critical for both parents and clinicians when working with adopted children and
754 M. Regnerus / Social Science Research 41 (2012) 752770
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teens (Miller et al., 2000). This ought to give social scientists studying gay parenting outcomes pause, especially in light of
concerns noted above about small sample sizes and the absence of a comparable recent, documented improvement in out-
comes from youth in adopted families and stepfamilies.
Far more, too, is known about the children of lesbian mothers than about those of gay fathers (Biblarz and Stacey, 2010;
Patterson, 2006; Veldorale-Brogan and Cooley, 2011). Biblarz and Stacey (2010, p. 17) note that while gay-male families re-
main understudied, their daunting routes to parenthood seem likely to select more for strengths than limitations. Others
are not so optimistic. One veteran of a study of the daughters of gay fathers warns scholars to avoid overlooking the family
dynamics of emergent gay parents, who likely outnumber planned ones: Children born into heterosexually organized
marriages where fathers come out as gay or bisexual also face having to deal with maternal bitterness, marital conict, pos-
sible divorce, custody issues, and fathers absence (Sirota, 2009, p. 291).
Regardless of sampling strategy, scholars also know much less about the lives of young-adult children of gay and lesbian
parents, or how their experiences and accomplishments as adults compare with others who experienced different sorts of
household arrangements during their youth. Most contemporary studies of gay parenting processes have focused on the
presentwhat is going on inside the household when children are still under parental care (Tasker, 2005; Bos and Sandfort,
2010; Brewaeys et al., 1997). Moreover, such research tends to emphasize parent-reported outcomes like parental divisions of
labor, parentchild closeness, daily interaction patterns, gender roles, and disciplinary habits. While such information is
important to learn, it means we know far more about the current experience of parents in households with children than
we do about young adults who have already moved through their childhood and nowspeak for themselves. Studies on family
structure, however, serve scholars and family practitioners best when they span into adulthood. Do the children of gay and
lesbian parents look comparable to those of their heterosexual counterparts? The NFSS is poised to address this question
about the lives of young adults between the ages of 18 and 39, but not about children or adolescents. While the NFSS is
not the answer to all of this domains methodological challenges, it is a notable contribution in important ways.
1.3. The New Family Structures Study
Besides being brand-new data, several other aspects about the NFSS are novel and noteworthy. First, it is a study of young
adults rather than children or adolescents, with particular attention paid to reaching ample numbers of respondents who
were raised by parents that had a same-sex relationship. Second, it is a much larger study than nearly all of its peers. The
NFSS interviewed just under 3000 respondents, including 175 who reported their mother having had a same-sex romantic
relationship and 73 who said the same about their father. Third, it is a weighted probability sample, from which meaningful
statistical inferences and interpretations can be drawn. While the 2000 (and presumably, the 2010) US Census Integrated
Public Use Microdata Series (IPUMS) offers the largest nationally-representative sample-based information about youth in
same-sex households, the Census collects much less outcome information of interest. The NFSS, however, asked numerous
questions about respondents social behaviors, health behaviors, and relationships. This manuscript provides the rst
glimpse into those outcomes by offering statistical comparisons of them among eight different family structures/experiences
of origin. Accordingly, there is much that the NFSS offers, and not just about the particular research questions of this study.
There are several things the NFSS is not. The NFSS is not a longitudinal study, and therefore cannot attempt to broach
questions of causation. It is a cross-sectional study, and collected data from respondents at only one point in time, when they
were between the ages of 18 and 39. It does not evaluate the offspring of gay marriages, since the vast majority of its respon-
dents came of age prior to the legalization of gay marriage in several states. This study cannot answer political questions
about same-sex relationships and their legal legitimacy. Nevertheless, social science is a resource that offers insight to polit-
ical and legal decision-makers, and there have been enough competing claims about what the data says about the children
of same-sex parentsincluding legal depositions of social scientists in important casesthat a study with the methodolog-
ical strengths of this one deserves scholarly attention and scrutiny.
2. Data collection, measures, and analytic approach
The NFSS data collection project is based at the University of Texas at Austins Population Research Center. A survey de-
sign team consisting of several leading family researchers in sociology, demography, and human developmentfrom Penn
State University, Brigham Young University, San Diego State University, the University of Virginia, and several from the
University of Texas at Austinmet over 2 days in January 2011 to discuss the projects sampling strategy and scope, and con-
tinued to offer advice as questions arose over the course of the data collection process. The team was designed to merge
scholars across disciplines and ideological lines in a spirit of civility and reasoned inquiry. Several additional external con-
sultants also gave close scrutiny to the survey instrument, and advised on how best to measure diverse topics. Both the study
protocol and the questionnaire were approved by the University of Texas at Austins Institutional Review Board. The NFSS
data is intended to be publicly accessible and will thus be made so with minimal requirements by mid-late 2012. The NFSS
was supported in part by grants from the Witherspoon Institute and the Bradley Foundation. While both of these are com-
monly known for their support of conservative causesjust as other private foundations are known for supporting more
liberal causesthe funding sources played no role at all in the design or conduct of the study, the analyses, the interpreta-
tions of the data, or in the preparation of this manuscript.
SER 621
2.1. The data collection process
The data collection was conducted by Knowledge Networks (or KN), a research rm with a very strong record of gener-
ating high-quality data for academic projects. Knowledge Networks recruited the rst online research panel, dubbed the
KnowledgePanel
, that is representative of the US population. Members of the KnowledgePanel
are randomly recruited

by telephone and mail surveys, and households are provided with access to the Internet and computer hardware if needed.
Unlike other Internet research panels sampling only individuals with Internet access who volunteer for research, the Knowl-
edgePanel
is based on a sampling frame which includes both listed and unlisted numbers, those without a landline tele-
phone and is not limited to current Internet users or computer owners, and does not accept self-selected volunteers. As a
result, it is a random, nationally-representative sample of the American population. At last count, over 350 working papers,
conference presentations, published articles, and books have used Knowledge Networks panels, including the 2009 National
Survey of Sexual Health and Behavior, whose extensive results were featured in an entire volume of the Journal of Sexual
Medicineand prominently in the mediain 2010 (Herbenick et al., 2010). More information about KN and the Knowledge-
Panel
, including panel recruitment, connection, retention, completion, and total response rates, are available from KN. The
typical within survey response rate for a KnowledgePanel
survey is 65%. Appendix A presents a comparison of age-appro-

priate summary statistics from a variety of socio-demographic variables in the NFSS, alongside the most recent iterations of
the Current Population Survey, the National Longitudinal Study of Adolescent Health (Add Health), the National Survey of
Family Growth, and the National Study of Youth and Religionall recent nationally-representative survey efforts. The esti-
mates reported there suggest the NFSS compares very favorably with other nationally-representative datasets.
2.2. The screening process
Particularly relevant for the NFSS is the fact that key populationsgay and lesbian parents, as well as heterosexual adop-
tive parentscan be challenging to identify and locate. The National Center for Marriage and Family Research (2010) esti-
mates that there are approximately 580,000 same-sex households in the United States. Among them, about 17%or
98,600are thought to have children present. While that may seem like a substantial number, in population-based sampling
strategies it is not. Locating minority populations requires a search for a probability sample of the general population, typ-
ically by way of screening the general population to identify members of rarer groups. Thus in order to boost the number of
respondents who reported being adopted or whose parent had a same-sex romantic relationship, the screener survey (which
distinguished such respondents) was left in the eld for several months between July 2011 and February 2012, enabling
existing panelists more time to be screened and new panelists to be added. Additionally, in late Fall 2011, former members
of the KnowledgePanel
were re-contacted by mail, phone, and email to encourage their screening. A total of 15,058 current
and former members of KNs KnowledgePanel
were screened and asked, among several other questions, From when you
were born until age 18 (or until you left home to be on your own), did either of your parents ever have a romantic relation-
ship with someone of the same sex? Response choices were Yes, my mother had a romantic relationship with another wo-
man, Yes, my father had a romantic relationship with another man, or no. (Respondents were also able to select both of
the rst two choices.) If they selected either of the rst two, they were asked about whether they had ever lived with that
parent while they were in a same-sex romantic relationship. The NFSS completed full surveys with 2988 Americans between
the ages of 18 and 39. The screener and full survey instrument is available at the NFSS homepage, located at: www.prc.utex-
as.edu/nfss.
2.3. What does a representative sample of gay and lesbian parents (of young adults) look like?
The weighted screener dataa nationally-representative samplereveal that 1.7% of all Americans between the ages of
18 and 39 report that their father or mother has had a same-sex relationship, a gure comparable to other estimates of chil-
dren in gay and lesbian households (e.g., Stacey and Biblarz (2001a,b) report a plausible range from 1% to 12%). Over twice as
many respondents report that their mother has had a lesbian relationship as report that their fathers have had a gay rela-
tionship. (A total of 58% of the 15,058 persons screened report spending their entire youthup until they turned 18 or left
the housewith their biological mother and father.)
While gay and lesbian Americans typically become parents today in four waysthrough one partners previous partici-
pation in a heterosexual union, through adoption, in-vitro fertilization, or by a surrogatethe NFSS is more likely to be com-
prised of respondents from the rst two of these arrangements than from the last two. Todays children of gay men and
lesbian women are more apt to be planned (that is, by using adoption, IVF, or surrogacy) than as little as 1520 years
ago, when such children were more typically the products of heterosexual unions. The youngest NFSS respondents turned
18 in 2011, while the oldest did so in 1990. Given that unintended pregnancy is impossible among gay men and a rarity
among lesbian couples, it stands to reason that gay and lesbian parents today are far more selective about parenting than
the heterosexual population, among whom unintended pregnancies remain very common, around 50% of total (Finer and
Henshaw, 2006). The share of all same-sex parenting arrangements that is planned, however, remains unknown. Although
the NFSS did not directly ask those respondents whose parent has had a same-sex romantic relationship about the manner of
SER 622
their own birth, a failed heterosexual union is clearly the modal method: just under half of such respondents reported that
their biological parents were once married. This distinguishes the NFSS from numerous studies that have been entirely con-
cerned with planned gay and lesbian families, like the NLLFS.
Among those who said their mother had a same-sex relationship, 91% reported living with their mother while she was in
the romantic relationship, and 57% said they had lived with their mother and her partner for at least 4 months at some point
prior to age 18. A smaller share (23%) said they had spent at least 3 years living in the same household with a romantic part-
ner of their mothers.
Among those who said their father had a same-sex relationship, however, 42% reported living with him while he was in a
same-sex romantic relationship, and 23% reported living with him and his partner for at least 4 months (but less than 2% said
they had spent at least 3 years together in the same household), a trend similarly noted in Taskers (2005) review article on
gay and lesbian parenting.
Fifty-eight (58) percent of those whose biological mothers had a same-sex relationship also reported that their biological
mother exited the respondents household at some point during their youth, and just under 14% of them reported spending
time in the foster care system, indicating greater-than-average household instability. Ancillary analyses of the NFSS suggests
a likely planned lesbian origin of between 17% and 26% of such respondents, a range estimated from the share of such
respondents who claimed that (1) their biological parents were never married or lived together, and that (2) they never lived
with a parental opposite-sex partner or with their biological father. The share of respondents (whose fathers had a same-sex
relationship) that likely came from planned gay families in the NFSS is under 1%.
These distinctions between the NFSSa population-based sampleand small studies of planned gay and lesbian families
nevertheless raise again the question of just how unrepresentative convenience samples of gay and lesbian parents actually
are. The use of a probability sample reveals that the young-adult children of parents who have had same-sex relationships
(in the NFSS) look less like the children of todays stereotypic gay and lesbian coupleswhite, uppermiddle class, well-edu-
cated, employed, and prosperousthan many studies have tacitly or explicitly portrayed. Goldberg (2010, pp. 1213) aptly
notes that existing studies of lesbian and gay couples and their families have largely included white, middle-class persons
who are relatively out in the gay community and who are living in urban areas, while working-class sexual minorities,
racial or ethnic sexual minorities, sexual minorities who live in rural or isolated geographical areas have been overlooked,
understudied, and difcult to reach. Rosenfelds (2010) analysis of Census data suggests that 37% of children in lesbian
cohabiting households are Black or Hispanic. Among respondents in the NFSS who said their mother had a same-sex rela-
tionship, 43% are Black or Hispanic. In the NLLFS, by contrast, only 6% are Black or Hispanic.
This is an important oversight: demographic indicators of where gay parents live today point less toward stereotypic
places like New York and San Francisco and increasingly toward locales where families are more numerous and overall fer-
tility is higher, like San Antonio and Memphis. In their comprehensive demographic look at the American gay and lesbian
population, Gates and Ost (2004, p. 47) report, States and large metropolitan areas with relatively low concentrations of
gay and lesbian couples in the population tend to be areas where same-sex couples are more likely to have children in
the household. A recent updated brief by Gates (2011, p. F3) reinforces this: Geographically, same-sex couples are most
likely to have children in many of the most socially conservative parts of the country. Moreover, Gates notes that racial
minorities are disproportionately more likely (among same-sex households) to report having children; whites, on the other
hand, are disproportionately less likely to have children. The NFSS sample reveals the same. Gates Census-based assess-
ments further raise questions about the sampling strategies ofand the popular use of conclusions fromstudies based en-
tirely on convenience samples derived from parents living in progressive metropolitan locales.
2.4. The structure and experience of respondents families of origin
The NFSS sought to provide as clear a vision as possible of the respondents household composition during their childhood
and adolescence. The survey asked respondents about the marital status of their biological parents both in the past and pres-
ent. The NFSS also collected calendar data from each respondent about their relationship to people who lived with them in
their household (for more than 4 months) from birth to age 18, as well as who has lived with them from age 18after they
have left hometo the present. While the calendar data is utilized only sparingly in this study, such rich data enables
researchers to document who else has lived with the respondent for virtually their entire life up to the present.
For this particular study, I compare outcomes across eight different types of family-of-origin structure and/or experience.
They were constructed from the answers to several questions both in the screener survey and the full survey. It should be
noted, however, that their construction reects an unusual combination of intereststhe same-sex romantic behavior of par-
ents, and the experience of household stability or disruption. The eight groups or household settings (with an acronym or
short descriptive title) evaluated here, followed by their maximum unweighted analytic sample size, are:
1. IBF: Lived in intact biological family (with mother and father) from 0 to 18, and parents are still married at present
(N = 919).
2. LM: R reported Rs mother had a same-sex romantic (lesbian) relationship with a woman, regardless of any other
household transitions (N = 163).
3. GF: R reported Rs father had a same-sex romantic (gay) relationship with a man, regardless of any other household
transitions (N = 73).
SER 623
4. Adopted: R was adopted by one or two strangers at birth or before age 2 (N = 101).
5. Divorced later or had joint custody: R reported living with biological mother and father from birth to age 18, but par-
ents are not married at present (N = 116).
6. Stepfamily: Biological parents were either never married or else divorced, and Rs primary custodial parent was mar-
ried to someone else before R turned 18 (N = 394).
7. Single parent: Biological parents were either never married or else divorced, and Rs primary custodial parent did not
marry (or remarry) before R turned 18 (N = 816).
8. All others: Includes all other family structure/event combinations, such as respondents with a deceased parent
(N = 406).
Together these eight groups account for the entire NFSS sample. These eight groups are largely, but not entirely, mutually
exclusive in reality. That is, a small minority of respondents might t more than one group. I have, however, forced their
mutual exclusivity here for analytic purposes. For example, a respondent whose mother had a same-sex relationship might
also qualify in Group 5 or Group 7, but in this case my analytical interest is in maximizing the sample size of Groups 2 and 3
so the respondent would be placed in Group 2 (LMs). Since Group 3 (GFs) is the smallest and most difcult to locate ran-
domly in the population, its composition trumped that of others, even LMs. (There were 12 cases of respondents who re-
ported both a mother and a father having a same-sex relationship; all are analyzed here as GFs, after ancillary analyses
revealed comparable exposure to both their mother and father).
Obviously, different grouping decisions may affect the results. The NFSS, which sought to learn a great deal of information
about respondents families of origin, is well-poised to accommodate alternative grouping strategies, including distinguish-
ing those respondents who lived with their lesbian mothers partner for several years (vs. sparingly or not at all), or early in
their childhood (compared to later). Small sample sizes (and thus reduced statistical power) may nevertheless hinder some
strategies.
In the results section, for maximal ease, I often make use of the acronyms IBF (child of a still-intact biological family), LM
(child of a lesbian mother), and GF (child of a gay father). It is, however, very possible that the same-sex romantic relation-
ships about which the respondents report were not framed by those respondents as indicating their own (or their parents
own) understanding of their parent as gay or lesbian or bisexual in sexual orientation. Indeed, this is more a study of the chil-
dren of parents who have had (and in some cases, are still in) same-sex relationships than it is one of children whose parents
have self-identied or are out as gay or lesbian or bisexual. The particular parental relationships the respondents were
queried about are, however, gay or lesbian in content. For the sake of brevity and to avoid entanglement in interminable
debates about xed or uid orientations, I will regularly refer to these groups as respondents with a gay father or lesbian
mother.
2.5. Outcomes of interest
This study presents an overview of 40 outcome measures available in the NFSS. Table 1 presents summary statistics for all
variables. Why these outcomes? While the survey questionnaire (available online) contains several dozen outcome questions
of interest, I elected to report here an overview of those outcomes, seeking to include common and oft-studied variables of
interest from a variety of different domains. I include all of the particular indexes we sought to evaluate, and a broad list of
outcomes from the emotional, relational, and social domains. Subsequent analyses of the NFSS will no doubt examine other
outcomes, as well as examine the same outcomes in different ways.
The dichotomous outcome variables summarized in Table 1 are the following: relationship status, employment status,
whether they voted in the last presidential election, and use of public assistance (both currently and while growing up),
the latter of which was asked as Before you were 18 years old, did anyone in your immediate family (that is, in your house-
hold) ever receive public assistance (such as welfare payments, food stamps, Medicaid, WIC, or free lunch)? Respondents
were also asked about whether they had ever seriously thought about committing suicide in the past 12 months, and about
their utilization of counseling or psychotherapy for treatment of any problem connected with anxiety, depression, relation-
ships, etc.
The Kinsey scale of sexual behavior was employed, but modied to allow respondents to select the best description of
their sexual orientation (rather than behavior). Respondents were asked to choose the description that best ts how they
think about themselves: 100% heterosexual, mostly heterosexual but somewhat attracted to people of your own sex, bisex-
ual (that is, attracted to men and women equally), mostly homosexual but somewhat attracted to people of the opposite sex,
100% homosexual, or not sexually attracted to either males or females. For simplicity of presentation, I create a dichotomous
measure indicating 100% heterosexual (vs. anything else). Additionally, unmarried respondents who are currently in a rela-
tionship were asked if their romantic partner is a man or a woman, allowing construction of a measure of currently in a
same-sex romantic relationship.
All respondents were asked if a parent or other adult caregiver ever touched you in a sexual way, forced you to touch him
or her in a sexual way, or forced you to have sexual relations? Possible answers were: no, never; yes, once; yes, more than
once; or not sure. A broader measure about forced sex was asked before it, and read as follows: Have you ever been phys-
ically forced to have any type of sexual activity against your will? It employs identical possible answers; both have been
dichotomized for the analyses (respondents who were not sure were not included). Respondents were also asked if they
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Table 1
Weighted summary statistics of measures, NFSS.
NFSS variables Range Mean SD N
Currently married 0, 1 0.41 0.49 2988
Currently cohabiting 0, 1 0.15 0.36 2988
Family received welfare growing up 0, 1 0.34 0.47 2669
Currently on public assistance 0, 1 0.21 0.41 2952
Currently employed full-time 0,1 0.45 0.50 2988
Currently unemployed 0, 1 0.12 0.32 2988
Voted in last presidential election 0, 1 0.55 0.50 2960
Bullied while growing up 0, 1 0.36 0.48 2961
Ever suicidal during past year 0, 1 0.07 0.25 2953
Recently or currently in therapy 0, 1 0.11 0.32 2934
Identies as entirely heterosexual 0, 1 0.85 0.36 2946
Is in a same-sex romantic relationship 0, 1 0.06 0.23 1056
Had affair while married/cohabiting 0, 1 0.19 0.39 1869
Has ever had an STI 0, 1 0.11 0.32 2911
Ever touched sexually by parent/adult 0, 1 0.07 0.26 2877
Ever forced to have sex against will 0, 1 0.13 0.33 2874
Educational attainment 15 2.86 1.11 2988
Family-of-origin safety/security 15 3.81 0.97 2917
Family-of-origin negative impact 15 2.58 0.98 2919
Closeness to biological mother 15 4.05 0.87 2249
Closeness to biological father 15 3.74 0.98 1346
Self-reported physical health 15 3.57 0.94 2964
Self-reported overall happiness 15 4.00 1.05 2957
CES-D depression index 14 1.89 0.62 2815
Attachment scale (depend) 15 2.97 0.84 2848
Attachment scale (anxiety) 15 2.51 0.77 2830
Impulsivity scale 14 1.88 0.59 2861
Level of household income 113 7.42 3.17 2635
Current relationship quality index 15 3.98 0.98 2218
Current relationship is in trouble 14 2.19 0.96 2274
Frequency of marijuana use 16 1.50 1.23 2918
Frequency of alcohol use 16 2.61 1.36 2922
Frequency of drinking to get drunk 16 1.70 1.09 2922
Frequency of smoking 16 2.03 1.85 2922
Frequency of watching TV 16 3.15 1.60 2919
Frequency of having been arrested 14 1.29 0.63 2951
Frequency pled guilty to non-minor offense 14 1.16 0.46 2947
N of female sex partners (among women) 011 0.40 1.10 1975
N of female sex partners (among men) 011 3.16 2.68 937
N of male sex partners (among women) 011 3.50 2.52 1951
N of male sex partners (among men) 011 0.40 1.60 944
Age 1839 28.21 6.37 2988
Female 0, 1 0.51 0.50 2988
White 0, 1 0.57 0.49 2988
Gay-friendliness of state of residence 15 2.58 1.78 2988
Family-of-origin structure groups
Intact biological family (IBF) 0, 1 0.40 0.49 2988
Mother had same-sex relationship (LM) 0, 1 0.01 0.10 2988
Father had same-sex relationship (GF) 0, 1 0.01 0.75 2988
Adopted age 02 0, 1 0.01 0.75 2988
Divorced later/joint custody 0, 1 0.06 0.23 2988
Stepfamily 0, 1 0.17 0.38 2988
Single parent 0, 1 0.19 0.40 2988
All others 0, 1 0.15 0.36 2988
Mothers education
Less than high school 0, 1 0.15 0.35 2988
Received high school diploma 0, 1 0.28 0.45 2988
Some college/associates degree 0, 1 0.26 0.44 2988
Bachelors degrees 0, 1 0.15 0.36 2988
More than bachelors 0, 1 0.08 0.28 2988
Do not know/missing 0, 1 0.08 0.28 2988
Family-of-origin income
$020,000 0, 1 0.13 0.34 2988
$20,00140,000 0, 1 0.19 0.39 2988
$40,00175,000 0, 1 0.25 0.43 2988
$75,001100,000 0, 1 0.14 0.34 2988
$100,001150,000 0, 1 0.05 0.22 2988
(continued on next page)
SER 625
had ever had a sexually-transmitted infection, and if they had ever had a sexual relationship with someone else while they
(the respondent) were married or cohabiting.
Among continuous variables, I included a ve-category educational achievement measure, a standard ve-point self-
reported measure of general physical health, a ve-point measure of overall happiness, a 13-category measure of total
household income before taxes and deductions last year, and a four-point (frequency) measure of how often the respondent
thought their current relationship might be in trouble (never once, once or twice, several times, or numerous times).
Several continuous variables were constructed from multiple measures, including an eight-measure modied version of
the CES-D depression scale, an index of the respondents reported current (romantic) relationship quality, closeness to
the respondents biological mother and father, and a pair of attachment scalesone assessing dependability and the other
anxiety. Finally, a pair of indexes captures (1) the overall safety and security in their family while growing up, and (2)
respondents impressions of negative family-of-origin experiences that continue to affect them. These are part of a multidi-
mensional relationship assessment instrument (dubbed RELATE) designed with the perspective that aspects of family life,
such as the quality of the parents relationship with their children, create a family tone that can be mapped on a continuum
from safe/predictable/rewarding to unsafe/chaotic/punishing (Busby et al., 2001). Each of the scales and their component
measures are detailed in Appendix B.
Finally, I evaluate nine count outcomes, seven of which are frequency measures, and the other two counts of gender-spe-
cic sexual partners. Respondents were asked, During the past year, howoften did you. . . watch more than 3 h of television
in a row, use marijuana, smoke, drink alcohol, and drink with the intent to get drunk. Responses (05) ranged from never
to every day or almost every day. Respondents were also asked if they have ever been arrested, and if they had ever been
convicted of or pled guilty to any charges other than a minor trafc violation. Answers to these two ranged from 0 (no, never)
to 3 (yes, numerous times). Two questions about respondents number of sex partners were asked (of both men and women)
in this way: How many different women have you ever had a sexual relationship with? This includes any female you had
sex with, even if it was only once or if you did not know her well. The same question was asked about sexual relationships
with men. Twelve responses were possible: 0, 1, 2, 3, 46, 79, 1015, 1620, 2130, 3150, 5199, and 100+.
2.6. Analytic approach
My analytic strategy is to highlight distinctions between the eight family structure/experience groups on the 40 outcome
variables, both in a bivariate manner (using a simple T-test) and in a multivariate manner using appropriate variable-specic
regression techniqueslogistic, OLS, Poisson, or negative binomialand employing controls for respondents age, race/eth-
nicity, gender, mothers education, and perceived family-of-origin income, an approach comparable to Rosenfelds (2010)
analysis of differences in children making normal progress through school and the overview article highlighting the ndings
of the rst wave of the Add Health study (Resnick et al., 1997). Additionally, I controlled for having been bullied, the measure
for which was asked as follows: While growing up, children and teenagers typically experience negative interactions with
others. We say that someone is bullied when someone else, or a group, says or does nasty and unpleasant things to him or
her. We do not consider it bullying when two people quarrel or ght, however. Do you recall ever being bullied by someone
else, or by a group, such that you still have vivid, negative memories of it?
Finally, survey respondents current state of residence was coded on a scale (15) according to how expansive or restric-
tive its laws are concerning gay marriage and the legal rights of same-sex couples (as of November 2011). Emerging research
suggests state-level political realities about gay rights may discernibly shape the lives of GLB residents (Hatzenbuehler et al.,
2009; Rostosky et al., 2009). This coding scheme was borrowed from a Los Angeles Times effort to map the timeline of state-
level rights secured for gay unions. I modied it from a 10-point to a 5-point scale (Times Research Reporting, 2012). I clas-
sify the respondents current state in one of the following ve ways:
1 = Constitutional amendment banning gay marriage and/or other legal rights.
2 = Legal ban on gay marriage and/or other legal rights.
3 = No specic laws/bans and/or domestic partnerships are legal.
4 = Domestic partnerships with comprehensive protections are legal and/or gay marriages performed elsewhere are
recognized.
5 = Civil unions are legal and/or gay marriage is legal.
Each case in the NFSS sample was assigned a weight based on the sampling design and their probability of being selected,
ensuring a sample that is nationally representative of American adults aged 1839. These sample weights were used in every
Table 1 (continued)
NFSS variables Range Mean SD N
$150,001200,000 0, 1 0.01 0.11 2988
Above $200,000 0, 1 0.01 0.10 2988
Do not know/missing 0, 1 0.22 0.42 2988
SER 626
statistical procedure displayed herein unless otherwise noted. The regression models exhibited few (N < 15) missing values
on the covariates.
This broad overview approach, appropriate for introducing a new dataset, provides a foundation for future, more focused
analyses of the outcomes I explore here. There are, after all, far more ways to delineate family structure and experiences
and changes thereinthan I have undertaken here. Others will evaluate such groupings differently, and will construct alter-
native approaches of testing for group differences in what is admittedly a wide diversity of outcome measures.
I would be remiss to claim causation here, since to document that having particular family-of-origin experiencesor the
sexual relationships of ones parentscauses outcomes for adult children, I would need to not only document that there is a
correlation between such family-of-origin experiences, but that no other plausible factors could be the common cause of any
suboptimal outcomes. Rather, my analytic intention is far more modest than that: to evaluate the presence of simple group
differences, andwith the addition of several control variablesto assess just how robust such group differences are.
3. Results
3.1. Comparisons with still-intact, biological families (IBFs)
Table 2 displays mean scores on 15 dichotomous outcome variables which can be read as simple percentages, sorted by
the eight different family structure/experience groups described earlier. As in Tables 3 and 4, numbers that appear in bold
indicate that the groups estimate is statistically different from the young-adult children of IBFs, as discerned by a basic
T-test (p < 0.05). Numbers that appear with an asterisk (
) beside it indicate that the groups dichotomous variable estimate

from a logistic regression model (not shown) is statistically-signicantly different from IBFs, after controlling for respon-
dents age, gender, race/ethnicity, level of mothers education, perceived family-of-origins income, experience with having
been bullied as a youth, and the gay friendliness of the respondents current state of residence.
At a glance, the number of statistically-signicant differences between respondents from IBFs and respondents from the
other seven types of family structures/experiences is considerable, and in the vast majority of cases the optimal outcome
where one can be readily discernedfavors IBFs. Table 2 reveals 10 (out of 15 possible) statistically-signicant differences in
simple t-tests between IBFs and LMs (the pool of respondents who reported that their mother has had a lesbian relationship),
one higher than the number of simple differences (9) between IBFs and respondents from both single-parent and stepfam-
ilies. All but one of those associations is signicant in logistic regression analyses contrasting LMs and IBFs (the omitted
category).
Beginning at the top of Table 2, the marriage rates of LMs and GFs (those who reported that their father had a gay rela-
tionship) are statistically comparable to IBFs, while LMs cohabitation rate is notable higher than IBFs (24% vs. 9%, respec-
tively). Sixty-nine (69) percent of LMs and 57% of GFs reported that their family received public assistance at some point
while growing up, compared with 17% of IBFs; 38% of LMs said they are currently receiving some form of public assistance,
compared with 10% of IBFs. Just under half of all IBFs reported being employed full-time at present, compared with 26% of
Table 2
Mean scores on select dichotomous outcome variables, NFSS (can read as percentage: as in, 0.42 = 42%).
IBF (intact
bio family)
LM
(lesbian mother)
GF
(gay father)
Adopted by
strangers
Divorced
late (>18)
Stepfamily Single-
parent
All
other
Currently married 0.43 0.36 0.35 0.41 0.36
0.41 0.37 0.39

Currently cohabiting 0.09 0.24
0.21 0.07
^
0.31
0.19
0.19
0.13
Family received welfare growing up 0.17 0.69
0.57
0.12
^
0.47
^
0.53
^
0.48
^
0.35
^
Currently on public assistance 0.10 0.38
0.23 0.27
0.31
0.30
0.30
0.23
Currently employed full-time 0.49 0.26
0.34 0.41 0.42 0.47

^
0.43
^
0.39
Currently unemployed 0.08 0.28
0.20 0.22
0.15 0.14 0.13

^
0.15
Voted in last presidential election 0.57 0.41 0.73
^
0.58 0.63
^
0.57
^
0.51 0.48
Thought recently about suicide 0.05 0.12 0.24
0.07 0.08 0.10 0.05 0.09

Recently or currently in therapy 0.08 0.19
0.19 0.22
0.12 0.17
0.13
0.09
Identies as entirely heterosexual 0.90 0.61
0.71
0.82
^
0.83
^
0.81
^
0.83
^
0.82
^
Is in a same-sex romantic relationship 0.04 0.07 0.12 0.23 0.05 0.13
0.03 0.02
Had affair while married/cohabiting 0.13 0.40
0.25 0.20 0.12

^
0.32
0.19
^
0.16
^
Has ever had an STI 0.08 0.20
0.25
0.16 0.12 0.16
0.14
0.08
Ever touched sexually by parent/adult 0.02 0.23
0.06
^
0.03
^
0.10
0.12
0.10
0.08
^
Ever forced to have sex against will 0.08 0.31
0.25
0.23
0.24
0.16
0.16
^
0.11
^
Bold indicates the mean scores displayed are statistically-signicantly different from IBFs (currently intact, bio mother/father household, column 1),
without additional controls.
An asterisk (
) next to the estimate indicates a statistically-signicant difference (p < 0.05) between the groups coefcient and that of IBFs, controlling for
respondents age, gender, race/ethnicity, level of mothers education, perceived household income while growing up, experience being bullied as a youth,
and states legislative gay-friendliness, derived from logistic regression models (not shown).
A caret (^) next to the estimate indicates a statistically-signicant difference (p < 0.05) between the groups mean and the mean of LM (column 2), without
additional controls.
SER 627
LMs. While only 8% of IBF respondents said they were currently unemployed, 28% of LM respondents said the same. LMs
were statistically less likely than IBFs to have voted in the 2008 presidential election (41% vs. 57%), and more than twice
as likely19% vs. 8%to report being currently (or within the past year) in counseling or therapy for a problem connected
with anxiety, depression, relationships, etc., an outcome that was signicantly different after including control variables.
In concurrence with several studies of late, the NFSS reveals that the children of lesbian mothers seem more open to
same-sex relationships (Biblarz and Stacey, 2010; Gartrell et al., 2011a,b; Golombok et al., 1997). Although they are not sta-
tistically different from most other groups in having a same-sex relationship at present, they are much less apt to identify
entirely as heterosexual (61% vs. 90% of respondents from IBFs). The same was true of GF respondentsthose young adults
who said their father had a relationship with another man: 71% of them identied entirely as heterosexual. Other sexual dif-
ferences are notable among LMs, too: a greater share of daughters of lesbian mothers report being not sexually attracted to
either males or females than among any other family-structure groups evaluated here (4.1% of female LMs, compared to
0.5% of female IBFs, not shown in Table 2). Exactly why the young-adult children of lesbian mothers are more apt to expe-
rience same-sex attraction and behaviors, as well as self-report asexuality, is not clear, but the fact that they do seems con-
sistent across studies. Given that lower rates of heterosexuality characterize other family structure/experience types in the
Table 3
Mean scores on select continuous outcome variables, NFSS.
IBF (intact
bio family)
LM (lesbian
mother)
GF (gay
father)
Adopted by
strangers
Divorced
late (>18)
Stepfamily Single- parent All
other
Educational attainment 3.19 2.39
2.64
3.21
^
2.88
^
2.64
2.66
2.54
Family-of-origin safety/security 4.13 3.12
3.25
3.77
^
3.52
3.52
^
3.58
^
3.77
^
Family-of-origin negative impact 2.30 3.13
2.90
2.83
2.96
2.76
2.78
2.64
^
Closeness to biological mother 4.17 4.05 3.71
3.58 3.95 4.03 3.85
3.97
Closeness to biological father 3.87 3.16 3.43 3.29
3.65 3.24
3.61
Self-reported physical health 3.75 3.38 3.58 3.53 3.46 3.49 3.43
3.41
Self-reported overall happiness 4.16 3.89 3.72 3.92 4.02 3.87
3.93 3.83
CES-D depression index 1.83 2.20
2.18
1.95 2.01 1.91

^
1.89
^
1.94
^
Attachment scale (depend) 2.82 3.43
3.14 3.12
3.08
^
3.10
^
3.05
^
3.02
^
Attachment scale (anxiety) 2.46 2.67 2.66 2.66 2.71 2.53 2.51 2.56
Impulsivity scale 1.90 2.03 2.02 1.85 1.94 1.86
^
1.82
^
1.89
Level of household income 8.27 6.08 7.15 7.93
^
7.42
^
7.04 6.96 6.19
Current relationship quality index 4.11 3.83 3.63
3.79 3.95 3.80
3.95 3.94
Current relationship is in trouble 2.04 2.35 2.55
2.35 2.43 2.35
2.26
2.15
An asterisk (
and states legislative gay-friendliness, derived from OLS regression models (not shown).
Table 4
Mean scores on select event-count outcome variables, NFSS.
IBF (intact
bio family)
LM (lesbian
mother)
GF
(gay father)
Adopted by
strangers
Divorced
late (>18)
Stepfamily Single-
parent
All
other
Frequency of marijuana use 1.32 1.84
1.61 1.33
^
2.00
1.47 1.73
1.49
Frequency of alcohol use 2.70 2.37 2.70 2.74 2.55 2.50 2.66 2.44
Frequency of drinking to get drunk 1.68 1.77 2.14 1.73 1.90 1.68 1.74 1.64
Frequency of smoking 1.79 2.76
2.61
2.34
2.44
2.31
2.18
1.91
^
Frequency of watching TV 3.01 3.70
3.49 3.31 3.33 3.43
3.25 2.95
^
Frequency of having been arrested 1.18 1.68
1.75
1.31
^
1.38 1.38
^
1.35
^
1.34
^
Frequency pled guilty to non-minor offense 1.10 1.36
1.41
1.19 1.30 1.21
1.17
^
1.17
^
N of female sex partners (among women) 0.22 1.04
1.47
0.47
^
0.96
0.47
^
0.52
^
0.33
^
N of female sex partners (among men) 2.70 3.46 4.17 3.24 3.66 3.85
3.23 3.37
N of male sex partners (among women) 2.79 4.02
5.92
3.49 3.97
4.57
4.04
2.91
^
N of male sex partners (among men) 0.20 1.48
1.47
0.27 0.98
0.55 0.42 0.44

An asterisk (
and states legislative gay-friendliness, derived from Poisson or negative binomial regression models (not shown).
SER 628
NFSS, as Table 2 clearly documents, the answer is likely located not simply in parental sexual orientation but in successful
cross-sex relationship role modeling, or its absence or scarcity.
Sexual conduct within their romantic relationships is also distinctive: while 13% of IBFs reported having had a sexual rela-
tionship with someone else while they were either married or cohabiting, 40% of LMs said the same. In contrast to Gartrell
et al.s (2011a,b) recent, widely-disseminated conclusions about the absence of sexual victimization in the NLLFS data, 23% of
LMs said yes when asked whether a parent or other adult caregiver ever touched you in a sexual way, forced you to touch
him or her in a sexual way, or forced you to have sexual relations, while only 2% of IBFs responded afrmatively. Since such
reports are more common among women than men, I split the analyses by gender (not shown). Among female respondents,
3% of IBFs reported parental (or adult caregiver) sexual contact/victimization, dramatically below the 31% of LMs who re-
ported the same. Just under 10% of female GFs responded afrmatively to the question, an estimate not signicantly different
from the IBFs.
It is entirely plausible, however, that sexual victimization could have been at the hands of the LM respondents biological
father, prompting the mother to leave the union andat some point in the futurecommence a same-sex relationship. Ancil-
lary (unweighted) analyses of the NFSS, which asked respondents how old they were when the rst incident occurred (and
can be compared to the household structure calendar, which documents who lived in their household each year up until age
18) reveal this possibility, up to a point: 33% of those LM respondents who said they had been sexually victimized by a parent
or adult caregiver reported that they were also living with their biological father in the year that the rst incident occurred.
Another 29% of victimized LMs reported never having lived with their biological father at all. Just under 34% of LM respon-
dents who said they had at some point lived with their mothers same-sex partner reported a rst-time incident at an age
that was equal to or higher than when they rst lived with their mothers partner. Approximately 13% of victimized LMs
reported living with a foster parent the year when the rst incident occurred. In other words, there is no obvious trend
to the timing of rst victimization and when the respondent may have lived with their biological father or their mothers
same-sex partner, nor are we suggesting by whom the respondent was most likely victimized. Future exploration of the
NFSSs detailed household structure calendar offers some possibility for clarication.
The elevated LM estimate of sexual victimization is not the only estimate of increased victimization. Another more gen-
eral question about forced sex, Have you ever been physically forced to have any type of sexual activity against your will
also displays signicant differences between IBFs and LMs (and GFs). The question about forced sex was asked before the
question about sexual contact with a parent or other adult and may include incidents of it but, by the numbers, clearly in-
cludes additional circumstances. Thirty-one percent of LMs indicated they had, at some point in their life, been forced to
have sex against their will, compared with 8% of IBFs and 25% of GFs. Among female respondents, 14% of IBFs reported forced
sex, compared with 46% of LMs and 52% of GFs (both of the latter estimates are statistically-signicantly different from that
reported by IBFs).
While I have so far noted several distinctions between IBFs and GFsrespondents who said their father had a gay rela-
tionshipthere are simply fewer statistically-signicant distinctions to note between IBFs and GFs than between IBFs and
LMs, which may or may not be due in part to the smaller sample of respondents with gay fathers in the NFSS, and the much
smaller likelihood of having lived with their gay father while he was in a same-sex relationship. Only six of 15 measures in
Table 2 reveal statistically-signicant differences in the regression models (but only one in a bivariate environment). After
including controls, the children of a gay father were statistically more apt (than IBFs) to receive public assistance while grow-
ing up, to have voted in the last election, to have thought recently about committing suicide, to ever report a sexually-trans-
mitted infection, have experienced forced sex, and were less likely to self-identify as entirely heterosexual. While other
outcomes reported by GFs often differed from IBFs, statistically-signicant differences were not as regularly detected.
Although my attention has been primarily directed at the inter-group differences between IBFs, LMs, and GFs, it is worth
noting that LMs are hardly alone in displaying numerous differences with IBFs. Respondents who lived in stepfamilies or sin-
gle-parent families displayed nine simple differences in Table 2. Besides GFs, adopted respondents displayed the fewest sim-
ple differences (three).
Table 3 displays mean scores on 14 continuous outcomes. As in Table 2, bold indicates simple statistically-signicant out-
come differences with young-adult respondents from still-intact, biological families (IBFs) and an asterisk indicates a regres-
sion coefcient (models not shown) that is signicantly different from IBFs after a series of controls. Consistent with Table 2,
eight of the estimates for LMs are statistically different from IBFs. Five of the eight differences are signicant as regression
estimates. The young-adult children of women who have had a lesbian relationship fare worse on educational attainment,
family-of-origin safety/security, negative impact of family-of-origin, the CES-D (depression) index, one of two attachment
scales, report worse physical health, smaller household incomes than do respondents from still-intact biological families,
and think that their current romantic relationship is in trouble more frequently.
The young-adult GF respondents were likewise statistically distinct from IBF respondents on seven of 14 continuous out-
comes, all of which were signicantly different when evaluated in regression models. When contrasted with IBFs, GFs re-
ported more modest educational attainment, worse scores on the family-of-origin safety/security and negative impact
indexes, less closeness to their biological mother, greater depression, a lower score on the current (romantic) relationship
quality index, and think their current romantic relationship is in trouble more frequently.
As in Table 2, respondents who reported living in stepfamilies or in single-parent households also exhibit numerous sim-
ple statistical differences from IBFson nine and 10 out of 14 outcomes, respectivelymost of which remain signicant in
SER 629
the regression models. On only four of 14 outcomes do adopted respondents appear distinctive (three of which remain sig-
nicant after introducing controls).
Table 4 displays mean scores on nine event counts, sorted by the eight family structure/experience groups. The NFSS
asked all respondents about experience with male and female sexual partners, but I report them here separately by gender.
LM respondents report statistically greater marijuana use, more frequent smoking, watch television more often, have been
arrested more, pled guilty to non-minor offenses more, andamong womenreport greater numbers of both female and
male sex partners than do IBF respondents. Female LMs reported an average of just over one female sex partner in their life-
times, as well as four male sex partners, in contrast to female IBFs (0.22 and 2.79, respectively). Male LMs report an average
of 3.46 female sex partners and 1.48 male partners, compared with 2.70 and 0.20, respectively, among male IBFs. Only the
number of male partners among men, however, displays signicant differences (after controls are included).
Among GFs, only three bivariate distinctions appear. However, six distinctions emerge after regression controls: they are
more apt than IBFs to smoke, have been arrested, pled guilty to non-minor offenses, and report more numerous sex partners
(except for the number of female sex partners among male GFs). Adopted respondents display no simple differences from
IBFs, while the children of stepfamilies and single parents each display six signicant differences with young adults from
still-intact, biological mother/father families.
Although I have paid much less attention to most of the other groups whose estimates also appear in Tables 24, it is
worth noting how seldom the estimates of young-adult children who were adopted by strangers (before age 2) differ statis-
tically from the children of still-intact biological families. They display the fewest simple signicant differencesseven
across the 40 outcomes evaluated here. Given that such adoptions are typically the result of considerable self-selection, it
should not surprise that they display fewer differences with IBFs.
To summarize, then, in 25 of 40 outcomes, there are simple statistically-signicant differences between IBFs and LMs,
those whose mothers had a same-sex relationship. After controls, there are 24 such differences. There are 24 simple differ-
ences between IBFs and stepfamilies, and 24 statistically-signicant differences after controls. Among single (heterosexual)
parents, there are 25 simple differences before controls and 21 after controls. Between GFs and IBFs, there are 11 and 19 such
differences, respectively.
3.2. Summary of differences between LMs and other family structures/experiences
Researchers sometimes elect to evaluate the outcomes of children of gay and lesbian parents by comparing them not di-
rectly to stable heterosexual marriages but to other types of households, since it is often the caseand it is certainly true of
the NFSSthat a gay or lesbian parent rst formed a heterosexual union prior to coming out of the closet, and witnessing
the dissolution of that union (Tasker, 2005). So comparing the children of such parents with those who experienced no union
dissolution is arguably unfair. The NFSS, however, enables researchers to compare outcomes across a variety of other types of
family-structural history. While I will not explore in-depth here all the statistically-signicant differences between LMs, GFs,
and other groups besides IBFs, a few overall observations are merited.
Of the 239 possible between-group differences herenot counting those differences with Group 1 (IBFs) already de-
scribed earlierthe young-adult children of lesbian mothers display 57 (or 24% of total possible) that are signicant at
the p < 0.05 level (indicated in Tables 24 with a caret), and 44 (or 18% of total) that are signicant after controls (not
shown). The majority of these differences are in suboptimal directions, meaning that LMs display worse outcomes. The
young-adult children of gay men, on the other hand, display only 11 (or 5% of total possible) between-group differences
that are statistically signicant at the p < 0.05 level, and yet 24 (or 10% of total) that are signicant after controls (not
shown).
In the NFSS, then, the young-adult children of a mother who has had a lesbian relationship display more signicant
distinctions with other respondents than do the children of a gay father. This may be the result of genuinely different
experiences of their family transitions, the smaller sample size of children of gay men, or the comparatively-rarer expe-
rience of living with a gay father (only 42% of such respondents reported ever living with their father while he was in a
same-sex relationship, compared with 91% who reported living with their mother while she was in a same-sex
relationship).
4. Discussion
Just how different are the adult children of men and women who pursue same-sex romantic (i.e., gay and lesbian)
relationships, when evaluated using population-based estimates from a random sample? The answer, as might be expected,
depends on to whom you compare them. When compared with children who grew up in biologically (still) intact, mother
father families, the children of women who reported a same-sex relationship look markedly different on numerous out-
comes, including many that are obviously suboptimal (such as education, depression, employment status, or marijuana
use). On 25 of 40 outcomes (or 63%) evaluated here, there are bivariate statistically-signicant (p < 0.05) differences between
children from still-intact, mother/father families and those whose mother reported a lesbian relationship. On 11 of 40 out-
comes (or 28%) evaluated here, there are bivariate statistically-signicant (p < 0.05) differences between children from
still-intact, mother/father families and those whose father reported a gay relationship. Hence, there are differences in both
SER 630
comparisons, but there are many more differences by any method of analysis in comparisons between young-adult children
of IBFs and LMs than between IBFs and GFs.
While the NFSS may best capture what might be called an earlier generation of children of same-sex parents, and in-
cludes among them many who witnessed a failed heterosexual union, the basic statistical comparisons between this group
and those of others, especially biologically-intact, mother/father families, suggests that notable differences on many out-
comes do in fact exist. This is inconsistent with claims of no differences generated by studies that have commonly em-
ployed far more narrow samples than this one.
Goldberg (2010) aptly asserts that many existing studies were conducted primarily comparing children of heterosexual
divorced and lesbian divorced mothers, potentially leading observers to erroneously attribute to parental sexual orientation
the corrosive effects of enduring parental divorce. Her warning is well-taken, and it is one that the NFSS cannot entirely
mitigate. Yet when compared with other young adults who experienced household transitions and who witnessed parents
forming new romantic relationshipsfor example, stepfamiliesthe children of lesbian mothers looked (statistically) signif-
icantly different just under 25% of the time (and typically in suboptimal directions). Nevertheless, the children of mothers
who have had same-sex relationships are far less apt to differ from stepfamilies and single parents than they are from
still-intact biological families.
Why the divergence between the ndings in this study and those from so many previous ones? The answer lies in part
with the small or nonprobability samples so often relied upon in nearly all previous studiesthey have very likely underes-
timated the number and magnitude of real differences between the children of lesbian mothers (and to a lesser extent, gay
fathers) and those raised in other types of households. While the architects of such studies have commonly and appropri-
ately acknowledged their limitations, practicallysince they are often the only studies being conductedtheir results are
treated as providing information about gay and lesbian household experiences in general. But this study, based on a rare large
probability sample, reveals far greater diversity in the experience of lesbian motherhood (and to a lesser extent, gay father-
hood) than has been acknowledged or understood.
Given that the characteristics of the NFSSs sample of children of LMs and GFs are close to estimates of the same offered by
demographers using the American Community Study, one conclusion from the analyses herein is merited: the sample-selec-
tion bias problem in very many studies of gay and lesbian parenting is not incidental, but likely profound, rendering the abil-
ity of much past research to offer valid interpretations of average household experiences of children with a lesbian or gay
parent suspect at best. Most snowball-sample-based research has, instead, shed light on above-average household
experiences.
While studies of family structure often locate at least modest benets that accrue to the children of married biological
parents, some scholars attribute much of the benet to socioeconomic-status differences between married parents and those
parents in other types of relationships (Biblarz and Raftery, 1999). While this is likely true of the NFSS as well, the results
presented herein controlled not only for socioeconomic status differences between families of origin, but also political-geo-
graphic distinctions, age, gender, race/ethnicity, and the experience of having been bullied (which was reported by 53% of
LMs but only 35% of IBFs).
To be sure, those NFSS respondents who reported that a parent of theirs had had a romantic relationship with a member
of the same sex are a very diverse group: some experienced numerous household transitions, and some did not. Some of their
parents may have remained in a same-sex relationship, while others did not. Some may self-identify as lesbian or gay, while
others may not. I did not explore in detail the diversity of household experiences here, given the overview nature of this
study. But the richness of the NFSSwhich has annual calendar data for household transitions from birth to age 18 and from
age 18 to the presentallows for closer examination of many of these questions.
Nevertheless, to claim that there are few meaningful statistical differences between the different groups evaluated here
would be to state something that is empirically inaccurate. Minimally, the population-based estimates presented here sug-
gest that a good deal more attention must be paid to the real diversity among gay and lesbian parent experiences in America,
just as it long has been among heterosexual households. Child outcomes in stable, planned GLB families and those that are
the product of previous heterosexual unions are quite likely distinctive, as previous studies conclusions would suggest. Yet
as demographers of gay and lesbian America continue to noteand as the NFSS reinforcesplanned GLB households only
comprise a portion (and an unknown one at that) of all GLB households with children.
Even if the children in planned GLB families exhibit better outcomes than those from failed heterosexual unions, the for-
mer still exhibits a diminished context of kin altruism (like adoption, step-parenting, or nonmarital childbirth), which have
typically proven to be a risk setting, on average, for raising children when compared with married, biological parenting (Mill-
er et al., 2000). In short, if same-sex parents are able to raise children with no differences, despite the kin distinctions, it
would mean that same-sex couples are able to do something that heterosexual couples in step-parenting, adoptive, and
cohabiting contexts have themselves not been able to doreplicate the optimal childrearing environment of married, bio-
logical-parent homes (Moore et al., 2002). And studies focusing on parental roles or household divisions of labor in planned
GLB families will fail to revealbecause they have not measured ithow their children fare as adults.
The between-group comparisons described above also suggest that those respondents with a lesbian mother and those
with a gay father do not always exhibit comparable outcomes in young adulthood. While the sample size of gay fathers
in the NFSS was modest, any monolithic ideas about same-sex parenting experiences in general are not supported by these
analyses.
SER 631
Although the NFSS offers strong support for the notion that there are signicant differences among young adults that cor-
respond closely to the parental behavior, family structures, and household experiences during their youth, I have not and will
not speculate here on causality, in part because the data are not optimally designed to do so, and because the causal
reckoning for so many different types of outcomes is well beyond what an overview manuscript like this one could ever pur-
port to accomplish. Focused (and more complex) analyses of unique outcomes, drawing upon idiosyncratic, domain-specic
conceptual models, is recommended for scholars who wish to more closely assess the functions that the number, gender, and
sexual decision-making of parents may play in young adults lives. I am thus not suggesting that growing up with a lesbian
mother or gay father causes suboptimal outcomes because of the sexual orientation or sexual behavior of the parent; rather,
my point is more modest: the groups display numerous, notable distinctions, especially when compared with young adults
whose biological mother and father remain married.
There is more that this article does not accomplish, including closer examinations of subpopulations, consideration
of more outcomes and comparisons between other groups, and stronger tests of statistical signicancesuch as multiple
regression with more numerous independent variables, or propensity score matching. That is what the NFSS is designed
to foster. This article serves as a call for such study, as well as an introduction to the data and to its sampling and measure-
ment strengths and abilities. Future studies would optimally include a more signicant share of children from planned gay
families, although their relative scarcity in the NFSS suggests that their appearance in even much larger probability samples
will remain infrequent for the foreseeable future. The NFSS, despite signicant efforts to randomly over-sample such popu-
lations, nevertheless was more apt to survey children whose parents exhibited gay and lesbian relationship behavior after
being in a heterosexual union. This pattern may remain more common today than many scholars suppose.
5. Conclusion
As scholars of same-sex parenting aptly note, same-sex couples have and will continue to raise children. American courts
are nding arguments against gay marriage decreasingly persuasive (Rosenfeld, 2007). This study is intended to neither
undermine nor afrm any legal rights concerning such. The tenor of the last 10 years of academic discourse about gay
and lesbian parents suggests that there is little to nothing about them that might be negatively associated with child devel-
opment, and a variety of things that might be uniquely positive. The results of analyzing a rare large probability sample re-
ported herein, however, document numerous, consistent differences among young adults who reported maternal lesbian
behavior (and to a lesser extent, paternal gay behavior) prior to age 18. While previous studies suggest that children in
planned GLB families seem to fare comparatively well, their actual representativeness among all GLB families in the US
may be more modest than research based on convenience samples has presumed.
Although the ndings reported herein may be explicable in part by a variety of forces uniquely problematic for child
development in lesbian and gay familiesincluding a lack of social support for parents, stress exposure resulting from per-
sistent stigma, and modest or absent legal security for their parental and romantic relationship statusesthe empirical claim
that no notable differences exist must go. While it is certainly accurate to afrm that sexual orientation or parental sexual
behavior need have nothing to do with the ability to be a good, effective parent, the data evaluated herein using population-
based estimates drawn froma large, nationally-representative sample of young Americans suggest that it may affect the real-
ity of family experiences among a signicant number.
Do children need a married mother and father to turn out well as adults? No, if we observe the many anecdotal accounts
with which all Americans are familiar. Moreover, there are many cases in the NFSS where respondents have proven resilient
and prevailed as adults in spite of numerous transitions, be they death, divorce, additional or diverse romantic partners, or
remarriage. But the NFSS also clearly reveals that children appear most apt to succeed well as adultson multiple counts and
across a variety of domainswhen they spend their entire childhood with their married mother and father, and especially
when the parents remain married to the present day. Insofar as the share of intact, biological mother/father families contin-
ues to shrink in the United States, as it has, this portends growing challenges within families, but also heightened depen-
dence on public health organizations, federal and state public assistance, psychotherapeutic resources, substance use
programs, and the criminal justice system.
Appendix A. Comparison of weighted NFSS results with parallel national survey results on selected demographic and
lifestyle variables, US adults (in percentages)
NFSS 2011,
N = 941
(1823)
NSYR
20072008,
N = 2520
(1823)
NFSS 2011,
N = 1123
(2432)
Add Health
20072008,
N = 15,701
(2432)
NFSS 2011,
N = 2988
(1839)
NSFG
20062010,
N = 16,851
(1839)
CPS ASEC
2011,
N = 58,788
(1839)
Gender
Male 52.6 48.3 47.3 50.6 49.4 49.8 50.4
Female 47.4 51.7 52.8 49.4 50.6 50.2 49.6
SER 632
Appendix A (continued)
NFSS 2011,
N = 941
(1823)
NSYR
20072008,
N = 2520
(1823)
NFSS 2011,
N = 1123
(2432)
Add Health
20072008,
N = 15,701
(2432)
NFSS 2011,
N = 2988
(1839)
NSFG
20062010,
N = 16,851
(1839)
CPS ASEC
2011,
N = 58,788
(1839)
Age
1823 28.9 28.6 28.2
2432 41.2 40.6 42.1
3339 29.9 30.9 29.8
Race/ethnicity
White, NH 54.2 68.3 60.2 69.2 57.7 61.6 59.6
Black, NH 11.0 15.0 13.0 15.9 12.6 13.3 13.2
Hispanic 24.9 11.2 20.7 10.8 20.8 18.6 19.5
Other (or multiple),
NH
10.0 5.5 6.2 4.2 8.9 6.5 7.8
Region
Northeast 18.9 11.8 16.5 17.6 17.5
Midwest 18.7 25.6 23.3 21.1 21.2
South 34.3 39.1 39.6 36.7 37.0
West 28.2 23.5 20.6 24.6 24.4
Mothers education
(BA or above)
28.4 33.3 24.6 21.9 25.3 22.2
Respondents education
(BA or above)
5.3 3.8 33.7 30.0 26.5 24.2
Household income
(current)
Under $10,000 21.0 9.7 5.6 11.9 9.5 5.7
$10,00019,999 13.3 9.1 6.9 9.2 13.1 7.4
$20,00029,999 11.6 10.3 10.1 10.5 13.5 9.5
$30,00039,999 8.0 11.0 11.1 9.6 13.4 9.4
$40,00049,999 6.5 12.8 11.8 9.9 8.5 9.1
$50,00074,999 14.9 22.3 24.3 19.2 19.5 20.3
$75,000 or more 24.7 24.9 30.2 29.8 22.7 38.6
Ever had sex 66.5 75.6 90.6 93.9 85.6 91.2
Never been married 89.3 92.8 45.7 50.0 51.7 52.3 54.4
Currently married 8.0 6.9 44.9 44.6 40.6 39.2 37.9
Church attendance
Once a week or more 18.4 20.2 22.1 16.0 22.3 26.2
Never 32.3 35.6 31.2 32.1 31.7 25.8
Not religious 21.1 24.7 22.5 20.2 22.0 21.7
Self-reported health
Poor 1.8 1.5 1.0 1.2 1.5 0.7
Fair 8.4 9.2 11.0 7.9 10.7 5.3
Good 28.7 26.7 37.6 33.5 33.9 24.9
Very Good 39.6 37.5 35.7 38.2 37.3 40.9
Excellent 21.5 25.2 14.8 19.1 16.7 28.3
Never drinks alcohol 30.5 21.9 22.4 26.1 25.4 18.7
SER 633
Appendix B. Construction of outcome indexes
B.1. CES-D (depression) index (8 items, a = 0.87)
Respondents were asked to think about the past 7 days, and assess howoften each of the following things were true about
them. Answer categories ranged from never or rarely (0) to most of the time or all of the time (3). Some items were re-
verse-coded for the index variable (e.g., You felt happy.):
1. You were bothered by things that usually do not bother you.
2. You could not shake off the blues, even with help from your family and your friends.
3. You felt you were just as good as other people.
4. You had trouble keeping your mind on what you were doing.
5. You felt depressed.
6. You felt happy.
7. You enjoyed life.
8. You felt sad.
B.2. Current romantic relationship quality (6 items, a = 0.96)
Respondents were asked to assess their current romantic relationship. Answer categories ranged from strongly disagree
(1) to strongly agree (5):
1. We have a good relationship.
2. My relationship with my partner is very healthy.
3. Our relationship is strong.
4. My relationship with my partner makes me happy.
5. I really feel like part of a team with my partner.
6. Our relationship is pretty much perfect.
B.3. Family-of-origin relationship safety/security (4 items, a = 0.90)
Respondents were asked to evaluate the overall atmosphere in their family while growing up by responding to four state-
ments whose answer categories ranged from strongly disagree (1) to strongly agree (5):
1. My family relationships were safe, secure, and a source of comfort.
2. We had a loving atmosphere in our family.
3. All things considered, my childhood years were happy.
4. My family relationships were confusing, inconsistent, and unpredictable.
B.4. Family-of-origin negative impact (3 items, a = 0.74)
Respondents were asked to evaluate the present-day impact of their family-of-origin experiences by responding to three
statements whose answer categories ranged from strongly disagree (1) to strongly agree (5):
1. There are matters from my family experience that I am still having trouble dealing with or coming to terms with.
2. There are matters from my family experience that negatively affect my ability to form close relationships.
3. I feel at peace about anything negative that happened to me in the family in which I grew up.
B.5. Impulsivity (4 items, a = 0.76)
Respondents were asked to respond to four statements about their decision-making, especially as it concerns risk-taking
and new experiences. Answer categories ranged from 1 (never or rarely) to 4 (most or all of the time):
1. When making a decision, I go with my gut feeling and do not think much about the consequences of each
alternative.
2. I like new and exciting experiences, even if I have to break the rules.
3. I am an impulsive person.
4. I like to take risks.
SER 634
B.6. Closeness to biological mother and father (6 items, a = 0.89 and 0.92)
Respondents were asked to evaluate their current relationship with up to four parent gureswho they reported living
with for at least 3 years when they were 018 years oldby reporting the frequency of six parentchild interactions. For each
parent gure, these six items were coded and summed into a parental closeness index. From these, I derived indices of close-
ness to the respondents biological mother and biological father. Response categories ranged from never (1) to always (5):
1. How often do you talk openly with your parent about things that are important to you?
2. How often does your parent really listen to you when you want to talk?
3. How often does your parent explicitly express affection or love for you?
4. Would your parent help you if you had a problem?
5. If you needed money, would you ask your parent for it?
6. How often is your parent interested in the things you do?
B.7. Attachment (depend, 6 items, a = 0.80; anxiety, 6 items, a = 0.82)
For a pair of attachment measures, respondents were asked to rate their general feelings about romantic relationships,
both past and present, in response to 12 items. Response categories ranged from not at all characteristic of me (1) to very
characteristic of me (5). Items 16 were coded and summed into a depend scale, with higher scores denoting greater com-
fort with depending upon others. Items 712 were coded and summed into an anxiety scale, with higher scores denoting
greater anxiety in close relationships, in keeping with the original Adult Attachment Scale developed by Collins and Read
(1990). The measures employed were:
1. I nd it difcult to allow myself to depend on others.
2. I am comfortable depending on others.
3. I nd that people are never there when you need them.
4. I know that people will be there when I need them.
5. I nd it difcult to trust others completely.
6. I am not sure that I can always depend on others to be there when I need them.
7. I do not worry about being abandoned.
8. In relationships, I often worry that my partner does not really love me.
9. I nd that others are reluctant to get as close as I would like.
10. In relationships, I often worry that my partner will not want to stay with me.
11. I want to merge completely with another person.
12. My desire to merge sometimes scares people away.
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Same-sex parenting and childrens outcomes: A closer examination of
the American psychological associations brief on lesbian and gay parenting
Loren Marks
Louisiana State University, 341 School of Human Ecology, Baton Rouge, LA 70803, United States
a r t i c l e i n f o
Article history:
Received 3 October 2011
Revised 8 March 2012
Accepted 12 March 2012
Keywords:
Same-sex parenting
Lesbian
Gay
a b s t r a c t
In 2005, the American Psychological Association (APA) issued an ofcial brief on lesbian
and gay parenting. This brief included the assertion: Not a single study has found children
of lesbian or gay parents to be disadvantaged in any signicant respect relative to children
of heterosexual parents (p. 15). The present article closely examines this assertion and the
59 published studies cited by the APA to support it. Seven central questions address: (1)
homogeneous sampling, (2) absence of comparison groups, (3) comparison group charac-
teristics, (4) contradictory data, (5) the limited scope of childrens outcomes studied, (6)
paucity of long-term outcome data, and (7) lack of APA-urged statistical power. The conclu-
sion is that strong assertions, including those made by the APA, were not empirically war-
ranted. Recommendations for future research are offered.
1. Introduction
Over the past few decades, differences have been observed between outcomes of children in marriage-based intact fam-
ilies and children in cohabiting, divorced, step, and single-parent families in large, representative samples.
1
Based on four
nationally representative longitudinal studies with more than 20,000 total participants, McLanahan and Sandefur conclude:
Children who grow up in a household with only one biological parent are worse off, on average, than children who grow up in a
household with both of their biological parents. . .regardless of whether the resident parent remarries.
2
Differences have recurred in connection with myriad issues of societal-level concern including: (a) health,
3
mortality,
4
and
suicide risks,
5
(b) drug and alcohol abuse,
6
(c) criminality and incarceration,
7
(d) intergenerational poverty,
8
(e) education and/
or labor force contribution,
9
(f) early sexual activity and early childbearing,
10
and (g) divorce rates as adults.
11
These outcomes
represent important impact variables that inuence the well-being of children and families, as well as the national economy.
0049-089X/$ - see front matter 2012 Elsevier Inc. All rights reserved.
http://dx.doi.org/10.1016/j.ssresearch.2012.03.006
Fax: +1 225 578 2697.

E-mail address: lorenm@lsu.edu
1
See Table 2; McLanahan and Sandefur (1994) and Wilcox et al. (2005).
2
McLanahan and Sandefur (1994), p. 1 (emphasis in original).
3
Waite (1995).
4
Gaudino et al. (1999) and Siegel et al. (1996).
5
Wilcox et al. (2005, p. 28) and Cutler et al. (2000).
6
Bachman et al. (1997), Flewelling and Bauman (1990), Horwitz et al. (1996), Johnson etal. (1996), Simon (2002), Waite and Gallagher (2000), Weitoft et al.
(2003), and Wilcox et al. (2005).
7
Blackmon et al. (2005), Harper and McLanahan (2004), Kamark and Galston (1990, pp. 1415), Manning and Lamb (2003), and Margolin (1992, p. 546).
8
Akerlof (1998), Blackmon et al. (2005), Brown (2004), Oliver and Shapiro (1997), Rank and Hirschl (1999).
9
Amato (2005), Battle (1998), Cherlin etal. (1998), Heiss (1996), Lansford (2009), Manning and Lamb (2003), McLanahan and Sandefur (1994), Phillips and
Asbury (1993), and Teachman et al. (1998).
10
Amato (2005), Amato and Booth (2000), Ellis et al. (2003), and McLanahan and Sandefur (1994).
11
Cherlin et al. (1995) and Wolnger (2005).
Social Science Research 41 (2012) 735751
Contents lists available at SciVerse ScienceDirect
Social Science Research
j our nal homepage: www. el sevi er . com/ l ocat e/ ssr esear ch
SER 637
By way of comparison, social science research with small convenience samples has repeatedly reported no signicant dif-
ferences between children from gay/lesbian households and heterosexual households. These recurring ndings of no signif-
icant differences have led some researchers and professional organizations to formalize related claims. Perhaps none of these
claims has been more inuential than the following from the 2005 American Psychological Association (APA) Brief on Les-
bian and Gay Parenting.
12,13
Not a single study has found children of lesbian or gay parents to be disadvantaged in any signicant respect relative to
children of heterosexual parents.
Are we witnessing the emergence of a new family form that provides a context for children that is equivalent to the tra-
ditional marriage-based family? Many proponents of same-sex marriage contend that the answer is yes. Others are skeptical
and wondergiven that other departures from the traditional marriage-based family form have been correlated with more
negative long-term child outcomesdo children in same-sex families demonstrably avoid being disadvantaged in any sig-
nicant respect relative to children of heterosexual parents as the APA Brief asserts? This is a question with important
implications, particularly since the 2005 APA Brief on Lesbian and Gay Parenting has been repeatedly invoked in the cur-
rent same-sex marriage debate.
2. Statement of purpose
The overarching question of this paper is: Are the conclusions presented in the 2005 APA Brief on Lesbian and Gay Parenting
valid and precise, based on the cited scientic evidence?
14
In the present paper, seven questions relating to the cited scientic
evidence are posed, examined, and addressed.
15
Two portions of the APA Brief are of particular concern to us in connection with these questions: (a) the Summary of
Research Findings (pp. 522), and (b) the rst and largest section of the annotated bibliography, entitled Empirical Studies
Specically Related to Lesbian and Gay Parents and Their Children (pp. 2345). In the latter section (pp. 2345), the APA
references 67 manuscripts. Eight of these studies are unpublished dissertations.
16
The 59 published studies are listed in
Table 1 of this paper, providing clear parameters from which to formulate responses to the seven outlined questions, next.
2.1. Question 1: how representative and culturally, ethnically, and economically diverse were the gay/lesbian households in the
published literature behind the APA brief?
In response to question 1, more than three-fourths (77%) of the studies cited by the APA brief are based on small, non-
representative, convenience samples of fewer than 100 participants. Many of the non-representative samples contain far
fewer than 100 participants, including one study with ve participants (Wright, 1998; see Table 1). As Strasser (2008) notes:
Members of the LGBT community. . .vary greatly in their attitudes and practices. For this reason, it would be misleading to
cite a study of gay men in urban southern California as if they would represent gay men nationally (p. 37).
By extension, it seems that inuential claims by national organizations should be based, at least partly, on research that is
nationally representative.
Lack of representativeness often entails lack of diversity as well.
17
A closer examination of the APA-cited literature from the
Empirical Studies (pp. 2345) section of the APA Brief reveals a tendency towards not only non-representative but racially
homogeneous samples. For example:
12
The APA Briefs stated objective was primarily to inuence family law. The preface states that the focus of the publication. . .[is] to serve the needs of
psychologists, lawyers, and parties in family law cases. . .. Although comprehensive, the research summary is focused on those issues that often arise in family
law cases involving lesbian mothers or gay fathers (APA Brief, 2005, p. 3). Redding (2008) reports that leading professional organizations including the
American Psychological Association have issued statements and that advocates have used these research conclusions to bolster support for lesbigay parenting
and marriage rights, and the research is now frequently cited in public policy debates and judicial opinions (p. 136).
13
Patterson, p. 15 (from APA Brief, 2005).
14
Kuhn (1970/1996) has stated that there is an insufciency of methodological directives, by themselves, to dictate a unique substantive conclusion to many
sorts of scientic questions (p. 3). To draw substantive conclusions, a socially and historically inuenced paradigm is needed. Research is then directed to the
articulation of those phenomena and theories that the paradigm already supplies (p. 24). Indeed, paradigmatic biases, and other inuences, can make us
vulnerable to discrepancies between warranted and stated conclusions in the social sciences (Glenn, 1989, p. 119; see also Glenn, 1997).
15
Kuhn (1970/1996) has noted that when scientists disagree about whether the fundamental problems of their eld have been solved, the search for rules
gains a function that it does not ordinarily possess (p. 48).
16
These unpublished dissertations include: Hand (1991), McPherson (1993), Osterweil (1991), Paul (1986), Puryear (1983), Rees (1979), Sbordone (1993), and
Steckel (1985). An adapted portion of one of these dissertations (Steckel, 1985) was eventually published (Steckel, 1987) and is included in the present
examination; the other unpublished work is not included in Table 1 of this paper.
17
Of the 59 published Empirical Studies Specically Related to Lesbian and Gay Parents and Their Children, no studies mention African-American, Hispanic,
or Asian-American families in either their titles or subtitles. The reference list in the APA Briefs Summary of Research Findings (pp. 1522) is also void of any
studies focusing on African-American, Hispanic, or Asian-American families. None of the Empirical Studies Specically Related to Lesbian and Gay Parents and
Their Children (pp. 2345) holds, as its focus, any of these minorities. (Note: Three years after the 2005 APA Brief, Moore (2008) published a small but
pioneering study on AfricanAmerican lesbians.)
736 L. Marks / Social Science Research 41 (2012) 735751
SER 638
Table 1
Publications Cited in APA brief on lesbian and gay parenting (pp. 2345).
Author and year GayLes N Hetero N Stat used Cohen
N
Stat
power
Outcome studied Hetero compar
group
Bailey et al. (1995) 55par; 82chl 0 T-test/Chi 393 N/A Sexual orientation None
Barrett and Tasker
(2001)
101 0 T-test/Chi 393 N/A Child responses to a gay parent None
Bigner and Jacobsen
(1989a)
33 33 T-test 393 No Parents reports of values of
children
Fathers
Bigner and Jacobsen
(1989b)
33 33 T-test 393 No Parent reports of parent behavior Fathers
Bos et al. (2003) 100 100 MANOVA 393 No Parental motives and desires Families
Bos et al. (2004) 100 100 MANOVA 393 No Parent reports of couple
relations
Families
Bozett (1980) 18 0 Qualitative N/A N/A Father disclosure of
homosexuality
None
Brewaeys et al. (1997) 30 68 ANOVA 393 No Emotional/gender development DI/Non-DI
Couples
Chan et al. (1998a) 30 16 Various 393 No Division of labor/child
adjustment
DI Couples
Chan et al. (1998b) 55 25 Various 393 Reported Psychosocial adjustment DI Couples
Ciano-Boyce and
Shelley-Sireci (2002)
67 44 ANOVA 393 No Division of child care Adoptive Parents
Crawford et al. (1999) 0 0 MANOVA 393 N/A 388 Psychologists attitudes N/A
Flaks et al. (1995) 15 15 MANOVA 393 No Cognitive/behavioral/parenting Married Couples
Fulcher et al. (2002) 55 25 T-test/Chi 393 Reported DI/adult-child relationships Parents
Gartrell et al. (1996) 154 0 Descript. N/A N/A Prospective Parent Reports None
Gartrell et al. (1999) 156 0 Descript. N/A N/A Reports on parenting issues None
Gartrell et al. (2000) 150 0 Descript. N/A N/A Reports on parenting issues None
Gartrell et al. (2005) 74 0 Descript. N/A N/A Health, school/education None
Gershon et al. (1999) 76 0 Reg. 390 N/A Adolescent coping None
Golombok et al. (1983) 27 27 T-test/Chi 393 No Psychosexual development Single mother
families
Golombok et al. (2003) 39 134 Various 393 No Socioemotional dev./relations Couples &
singles
Golombok and Rust
(1993)
N/A N/A N/A N/A N/A Reliability testing of a pre-school
gender inventory
Golombok and Tasker
(1996)
25 21 Pearson 783 Reported Sexual orientation Children of
single mothers
Golombok et al. (1997) 30 83 MANOVA 393 No. Parentchild interactions Couples &
singles
Green (1978) 37 0 Descript. N/A N/A Sexual identity None
Green et al. (1986) 50par; 56chl 40par; 48chl Various 390 No Sexual identity/social relations Single mothers
Harris and Turner
(1986)
23 16 ANOVA/Chi 393 No Sex roles/relationship with child Single moth. &
fath.
Hoeffer (1981) 20 20 ANOVA 393 No Sex-role behavior Single mothers
Huggins (1989) 18 18 T-test 393 No Self-esteem of adolescent
children
Divorced
mothers
Johnson and OConnor
(2002)
415 0 Various N/A No Parenting beliefs/division of
labor/etc.
None
King and Black (1999) N/A N/A F 393 N/A 338 College students
perceptions
N/A
Kirkpatrick et al. (1981) 20 20 Descript. N/A No Gender development Single mothers
Koepke et al. (1992) 47 couples 0 MANOVA N/A N/A Relationship quality None
Kweskin and Cook, 1982 22 22 Chi-Sqr 785 No Sex-role behavior Single mothers
Lewis, 1980 21 0 Qualitative N/A N/A Child response to m. disclosure None
Lott-Whitehead and
Tully, 1993
45 0 Descriptive N/A N/A Adult reports of impacts on
children
None
Lyons, 1983 43 37 Descriptive N/A No Adult self-reports Divorced
mothers
McLeod et al., 1999 0 0 Mult. regr. N/A No 151 College student reports N/A
Miller, 1979 54 0 Qualitative N/A N/A Father behavior & f-child bond None
Miller et al., 1981 34 47 Chi-Sqr 785 No Mother role/home environment Mothers
Morris et al., 2002 2431 0 MANCOVA N/A N/A Adult reports on coming out None
Mucklow and Phelan,
1979
34 47 Chi-Sqr 785 No Behavior and self-concept Married mothers
OConnell, 1993 11 0 Qualitative N/A N/A Social and sexual identity None
Pagelow, 1980 20 23 Qual/Descr. N/A N/A Problems and coping Single mothers
Patterson (1994) 66 0 T-test 393 No Social/behavioral/sexual identity Available norms
Patterson (1995) 52 0 T-test/Chi/F 393 No Division of labor/child
adjustment
None
(continued on next page)
L. Marks / Social Science Research 41 (2012) 735751 737
SER 639
1. All of [the fathers in the sample] were Caucasian (Bozett, 1980, p. 173).
2. Sixty parents, all of whom were White comprised the sample (Flaks et al., 1995, p. 107).
3. [All 40] mothers. . .were white (Hoeffer, 1981, p. 537).
4. All the children, mothers, and fathers in the sample were Caucasian (Huggins, 1989, p. 126).
5. The 25 women were all white (Rand et al., 1982, p. 29).
6. All of the women. . .[were] Caucasian (Siegenthaler and Bigner, 2000, p. 82).
7. All of the birth mothers and co-mothers were white (Tasker and Golombok, 1998, p. 52).
8. All [48] parents were Caucasian (Vanfraussen et al., 2003, p. 81).
Many of the other studies do not explicitly acknowledge all-White samples, but also do not mention or identify a single
minority participantwhile a dozen others report almost all-white samples.
18
Same-sex family researchers Lott-Whitehead
and Tully (1993) cautiously added in the discussion of their APA Brief-cited study:
Results from this study must be interpreted cautiously due to several factors. First, the study sample was small (N = 45)
and biased toward well-educated, white women with high incomes. These factors have plagued other [same-sex parent-
ing] studies, and remain a concern of researchers in this eld (p. 275).
Similarly, in connection with this bias, Patterson (1992), who would later serve as sole author of the 2005 APA Briefs
Summary of Research Findings on Lesbian and Gay Families, reported
19
:
Despite the diversity of gay and lesbian communities, both in the United States and abroad, samples of children [and par-
ents] have been relatively homogeneous. . .. Samples for which demographic information was reported have been
described as predominantly Caucasian, well-educated, and middle to upper class.
In spite of the privileged and homogeneous nature of the non-representative samples employed in the studies at that
time, Pattersons (1992) conclusion was as follows
20
:
Despite shortcomings [in the studies], however, results of existing research comparing children of gay or lesbian parents
with those of heterosexual parents are extraordinarily clear, and they merit attention. . . There is no evidence to suggest
that psychosocial development among children of gay men or lesbians is compromised in any respect relative to that
among offspring of heterosexual parents.
Table 1 (continued)
Author and year GayLes N Hetero N Stat used Cohen
N
Stat
power
Outcome studied Hetero compar
group
Patterson (2001) 66 0 Various 393 No Maternal mental health/child
adjustment
None
Patterson et al., 1998 66 0 Various 393 No Contact w/grandparents & adults None
Rand et al. (1982) 25 0 Correlations 783 No Mothers psychological health None
Sarantakos, 1996 58 116 F-test 393 N/A Childrens educational/social
outcomes
Married/non-
married
Siegenthaler and Bigner,
2000
25 26 T-test 393 No Mothers value of children Mothers
Steckel (1987) (Review) N/A N/A N/A No Psychosocial development of
children
None
Sullivan, 1996 34 couples 0 Qualitative N/A N/A Division of labor None
Tasker and Golombok,
1995
25 21 Pearson/T 783 No Psychosocial/sexual orientation Single mothers
Tasker and Golombok
(1997)
27 27 Various 393 Reported Psychological outcomes/family
rel.
Single mothers
Tasker and Golombok
(1998)
15 84 ANCOVA/
Chi
785 N/A Work and family life DI & NC couples
Vanfraussen et al.
(2003)
24 24 ANOVA 393 No Donor insemination/family
funct.
Families
Wainwright et al. (2004) 44 44 Various 393 No Psychosocial/school/romantic Couples
Wright (1998) 5 0 Qualitative N/A N/A Family issues/processes/
meaning
None
N/A = Not applicable (e.g., In connection with statistical power, qualitative studies and studies without heterosexual comparison groups are coded as N/A).
18
Examples of explicit or implicitly all-White (or nearly all-White) samples include, but are not limited to: Bigner andJacobsen (1989a,b), Bozett (1980), Flaks
et al. (1995), Green (1978), Green etal. (1986), Hoeffer (1981), Huggins (1989), Koepke et al. (1992), Rand et al. (1982), Siegenthaler and Bigner (2000), Tasker
and Golombok (1995, 1998), Vanfraussen et al. (2003).
19
Patterson (1992, p. 1029).
20
Patterson (1992, p. 1036) (emphasis added).
SER 640
Pattersons conclusion in a 2000 review was essentially the same
21
:
[C]entral results of existing research on lesbian and gay couples and families with children are exceptionally clear. . .. [The]
home environments provided by lesbian and gay parents are just as likely as those provided by heterosexual parents to
enable psychosocial growth among family members.
Although eight years had passed, in this second review, Patterson (2000) reported the continuing tendency of same-sex
parenting researchers to select privileged lesbian samples. Specically, she summarized, Much of the research [still] in-
volved small samples that are predominantly White, well-educated [and] middle-class (p. 1064).
22
Given the privileged,
homogeneous, and non-representative samples of lesbian mothers employed in much of the research, it seems warranted
to propose that Patterson was empirically premature to conclude that comparisons between gay or lesbian parents and het-
erosexual parents were extraordinarily clear
23
or exceptionally clear.
24
There is an additional point that warrants attention here. In Pattersons statements above, there are recurring references
to research on children of gay men/parents. In 2000, Demo and Cox reported that children living with gay fathers was a
rarely studied household conguration.
25
In 2005, how many of the 59 published studies cited in the APAs list of Empirical Stud-
ies Specically Related to Lesbian and Gay Parents and Their Children (pp. 2345) specically addressed the outcomes of children
from gay fathers? A closer examination reveals that only eight studies did so.
26
Of these eight studies, four did not include a het-
erosexual comparison group.
27
In three of the four remaining studies (with heterosexual comparison groups), the outcomes
studied were:
(1) the value of children to. . .fathers (Bigner and Jacobsen, 1989a, p. 163);
(2) parenting behaviors of. . .fathers (Bigner and Jacobsen, 1989b, p. 173);
(3) problems and relationship with child (Harris and Turner, 1986, pp. 1078).
The two Bigner and Jacobsen (1989a,b) studies focused on fathers reports of fathers values and behaviors, not on chil-
drens outcomesillustrating a recurring tendency in the same-sex parenting literature to focus on the parent rather than
the child. Harris and Turner (1986) addressed parentchild relationships, but their studys male heterosexual comparison
group was composed of two single fathers. Although several studies have examined aspects of gay fathers lives, none of
the studies comparing gay fathers and heterosexual comparison groups referenced in the APA Brief (pp. 2345) appear to
have specically focused on childrens developmental outcomes, with the exception of Sarantakos (1996), a study to which
we will later return.
In summary response to question 1 (How representative and culturally, ethnically, and economically diverse were the
gay/lesbian households in the published literature behind the APA Brief?), we see that in addition to relying primarily
on small, non-representative, convenience samples, many studies do not include any minority individuals or families. Fur-
ther, comparison studies on children of gay fathers are almost non-existent in the 2005 Brief. By their own reports, social
researchers examining same-sex parenting have repeatedly selected small, non-representative, homogeneous samples of
privileged lesbian mothers to represent all same-sex parents. This pattern across three decades of research raises signicant
questions regarding lack of representativeness and diversity in the same-sex parenting studies.
2.2. Question 2: how many studies of gay/lesbian parents had no heterosexual comparison group?
Of the 59 publications cited by the APA in the annotated bibliography section entitled Empirical Studies Specically
Related to Lesbian and Gay Parents and Their Children (pp. 2345), 33 included a heterosexual comparison group. In direct
response to question 2, 26 of the studies (44.1%) on same-sex parenting did not include a heterosexual comparison group. In
well-conducted science, it is important to have a clearly dened comparison group before drawing conclusions regarding
differences or the lack thereof. We see that nearly half of the Empirical Studies Specically Related to Lesbian and Gay Par-
ents and Their Children referenced in the APA Brief allowed no basis for comparison between these two groups (see Table
1). To proceed with precision, this fact does not negate the APA claim. It does, however, dilute it considerably as we are left
with not 59, but 33, relevant studies with heterosexual comparison groups.
2.3. Question 3: when heterosexual comparison groups were used, what were the more specic characteristics of those groups?
We now turn to a question regarding the nature of comparison samples. Of the 33 published Empirical Studies Specif-
ically Related to Lesbian and Gay Parents and Their Children (APA Brief, pp. 2345) that did directly include a heterosexual
21
Patterson (2000, , p. 1064) (emphasis added).
22
Patterson (2000, p. 1064).
23
Patterson (1992, p. 1036).
24
Patterson (2000, p. 1064).
25
Demo and Cox (2000, p. 890).
26
Bailey et al. (1995), Barrett and Tasker (2001), Bigner and Jacobsen (1989a,b), Bozett (1980), Harris and Turner (1986), Miller (1979), Sarantakos (1996).
27
Bailey et al. (1995), Barrett and Tasker (2001), Bozett (1980), Miller (1979).
SER 641
comparison group, what were the more specic characteristics of the groups that were compared? The earlier examination and
response related to question 1 documented that, by Pattersons reports, Despite the diversity of gay and lesbian communi-
ties. . .in the United States,
28
the repeatedly selected representatives of same-sex parents have been small samples [of lesbi-
ans] that are predominantly White, well-educated [and] middle-class (p. 1064).
29
In spite of homogeneous sampling, there is considerable diversity among gay and lesbian parents. Considerable diversity
exists among heterosexual parents as well. Indeed, the opening paragraph of the present article noted recurring differences
in several outcomes of societal concern for children in marriage-based intact families compared with children in cohabiting,
divorced, step, and single-parent families.
30
Many of the cited ndings are based on probability samples of thousands (see
Table 2).
Because children in marriage-based intact families have historically fared better than children in cohabiting, divorced,
step, or single-parent families on the above outcomes, the question of what groups researchers selected to represent het-
erosexual parents in the same-sex parenting studies becomes critical. A closer examination of the 33 published same-sex
parenting studies (APA Brief, pp. 2345) with comparison groups, listed chronologically, reveals that:
1. Pagelow (1980) used single mothers as a comparison group (p. 198).
2. Hoeffer (1981) used heterosexual single mothers (p. 537).
3. Kirkpatrick et al. (1981) used single, heterosexual mothers (p. 545).
4. Kweskin and Cook (1982) used women from Parents without Partners (p. 969).
Table 2
Brief overview of 15 intact/divorce/step/single family studies.
(N) Number of reported participants
Probability Is the study based on a probability sample?
Comp Grp Is a probability sample used as a comparison group?
Long Does the study employ measurements across time?
Key ! = Yes; X = No
(N) Probability Comp Grp Long
Amato (1991) 9643 ! ! !
Aquilino (1994) 4516 ! ! !
Brown (2004)
a
35,938 ! ! X
Chase-Lansdale et al. (1995)
b
17,414 ! ! !
Cherlin et al. (1998)
c
11,759 ! ! !
Ellis et al. (2003) 762 ! ! !
Harper and McLanahan (2004)
d
2846 ! ! !
Hetherington and Kelly (2002)
e
1400 ! ! !
Jekielek (1998) 1640 ! ! !
Lichter et al. (2003)
f
7665 ! ! X
Manning and Lamb (2003) 13,231 ! ! X
McLanahan and Sandefur (1994) (based on four data sets)
PSID
g
2900 ! ! !
NLSY
h
5246 ! ! !
HSBS
i
10,400 ! ! !
NSFH
j
13,017
k
! ! !
Mitchell et al. (2009)
l
4663 ! ! !
Nock (1998)
m
3604 ! ! !
Page and Stevens (2005)
n
2023 ! ! !
Total 148,667
a
National Survey of Americas Families (NSAF).
b
United Kingdom study and sample.
c
United Kingdom study and sample.
d
National Longitudinal Survey of Young Men and Women (NLSY).
e
Virginia Longitudinal Study (VLS).
f
National Survey of Family Growth (NSFG).
g
Panel Study of Income Dynamics (PSID).
h
i
The High School and Beyond Study (HSBS).
j
National Survey of Families and Households (NSFH).
k
This is the total original sample. The sub-sample is unlisted but is likely smaller.
l
National Longitudinal Study of Adolescent Health (Add Health).
m
n
Panel Study of Income Dynamics (PSID).
28
Patterson (1992, p. 1029).
29
Patterson (2000, p. 1064).
30
See Footnotes 210 for documentation.
SER 642
5. Lyons (1983) used heterosexual single mothers (p. 232).
6. Golombok et al. (1983) used single-parent households (p. 551).
7. Green et al. (1986) used solo parent heterosexual mothers (p. 175).
8. Harris and Turner (1986) used 2 male single parents and 14 female single parents (p. 105).
9. Huggins (1989) used divorced heterosexual mothers
31
(p. 123).
10. Tasker and Golombok (1995) used heterosexual single mothers (p. 203).
11. Tasker and Golombok (1997) used single heterosexual mothers (p. 38).
We see that in selecting heterosexual comparison groups for their studies, many same-sex parenting researchers have not
used marriage-based, intact families as heterosexual representatives, but have instead used single mothers (see Table 1).
Further, Bigner and Jacobsen used 90.9 percent single-father samples in two other studies (1989a, 1989b).
32
In total, in at
least 13 of the 33 comparison studies listed in the APA Briefs list of Empirical Studies (pp. 2345) that include heterosexual
comparison groups, the researchers explicitly sampled single parents as representatives for heterosexual parents. The re-
peated (and perhaps even modal) selection of single-parent families as a comparison heterosexual-parent group is noteworthy,
given that a Child Trends (2002) review has stated that children in single-parent families are more likely to have problems than
are children who live in intact families headed by two biological parents.
33
Given that at least 13 of the 33 comparison studies listed in the APA Briefs list of Empirical Studies (pp. 2345) used
single-parent families as heterosexual comparison groups, what group(s) did the remaining 20 studies use as heterosexual
representatives? In closely examining the 20 remaining published comparison group studies, it is difcult to formulate pre-
cise reports of the comparison group characteristics, because in many of these studies, the heterosexual comparison groups
are referred to as mothers or couples without appropriate specicity (see Table 1). Were these mothers continuously
marriedor were they single, divorced, remarried, or cohabiting? When couples were used, were they continuously mar-
riedor remarried or cohabiting? These failures to explicitly and precisely report sample characteristics (e.g., married or
cohabiting) are signicant in light of Browns (2004) nding based on her analysis of a data set of 35,938 US children and
their parents, that regardless of economic and parental resources, the outcomes of adolescents (1217 years old) in cohab-
iting families. . .are worse. . .than those. . .in two-biological-parent married families.
34
Because of the disparities noted by
Brown and others, scientic precision requires that we know whether researchers used: (a) single mothers, (b) cohabiting moth-
ers and couples, (c) remarried mothers, or (d) continuously married mothers and couples as heterosexual comparison groups.
Due to the ambiguity of the characteristics of the heterosexual samples in many same-sex parenting studies, let us frame
a question that permits a more precise response, namely: How many of the studies in the APA Briefs Empirical Studies section
(pp. 2345) explicitly compare the outcomes of children from intact, marriage-based families with those from same-sex families? In
an American Psychologist article published the year after the APA Brief, Herek (2006) referred to a large, national study by
McLanahan and Sandefur (1994) comparing the children of intact heterosexual families with children being raised by a sin-
gle parent. Herek then emphasized that this [large scale] research literature does not include studies comparing children
raised by two-parent same-sex couples with children raised by two-parent heterosexual couples.
35
Isolated exceptions exist
with relatively small samples (as discussed shortly in response to question 4 and as listed in Table 1), but they are rare.
Given what we have seen regarding heterosexual comparison group selection, let us revisit three related claims. First, in
1992, Patterson posited that
36
:
[N]ot a single study has found children of gay and lesbian parents to be disadvantaged in any respect relative to children
of heterosexual parents.
Pattersons (2000) claim was similar
37
:
[C]entral results of existing research on lesbian and gay couples and families with children are exceptionally clear. . ..
[The] home environments provided by lesbian and gay parents are just as likely as those provided by heterosexual par-
ents to enable psychosocial growth among family members.
Lastly, and most signicantly, we turn to the APA Briefs Summary of Research Findings on Lesbian and Gay Parenting,
also single-authored by Patterson (see p. 5)
38
:
Not a single study has found children of lesbian or gay parents to be disadvantaged in any signicant respect relative to
children of heterosexual parents.
31
Four of the 16 [divorced] heterosexual mothers were either remarried or currently living with a heterosexual lover (p. 127).
32
Of the 66 respondents, six were married, 48 were divorced, eight were separated, and four had never been married (Bigner and Jacobsen (1989a, p. 166).
This means the sample was 90.9% single.
33
Moore et al. (2002); for an extensive review, see Wilcox et al. (2011).
34
Brown (2004, p. 364) (emphasis added).
35
Herek (2006, p. 612).
36
37
38
Patterson, p. 15 (from APA Brief, 2005), (emphasis added).
SER 643
In all three of these claims (including that latter from the 2005 APA Brief), Patterson uses the broad and plural term het-
erosexual parents, a term that includes marriage-based, intact families. This broad claim is not nuanced by the information
that, with rare exceptions, the research does not include studies comparing children raised by two-parent, same-sex couples
with children raised by marriage-based, heterosexual couples. Further, no mention is made that in at least 13 of the 33 ex-
tant comparison studies referenced in the Brief (pp. 2345), the groups selected to represent heterosexual parents were
composed largely, if not solely, of single parents. We now move to another related examination of the APA Brief.
2.4. Question 4: does a scientically-viable study exist to contradict the conclusion that not a single study has found children of
lesbian or gay parents to be disadvantaged?
There is at least one notable exception
39
to the APAs claim that Not a single study has found children of lesbian or gay
parents to be disadvantaged in any signicant respect relative to children of heterosexual parents.
40
In the Summary of Find-
ings section, the APA Brief references a study by Sarantakos (1996),
41
but does so in a footnote that critiques the study (p. 6,
Footnote 1). On page 40 of the APA Briefs annotated bibliography, a reference to the Sarantakos (1996) article is offered, but
there is no summary of the studys ndings, only a note reading No abstract available.
Upon closer examination, we nd that the Sarantakos (1996) study is a comparative analysis of 58 children of heterosex-
ual married parents, 58 children of heterosexual cohabiting couples, and 58 children living with homosexual couples that
were all matched according to socially signicant criteria (e.g., age, number of children, education, occupation, and so-
cio-economic status).
42
The combined sample size (174) is the seventh-largest sample size of the 59 published studies listed
in the APA Briefs Summary of Research Findings on Lesbian and Gay Parenting (see Table 1). However, the six studies with
larger sample sizes were all adult self-report studies,
43
making the Sarantakos combined sample the largest study (APA Brief, pp.
2345) that examined childrens developmental outcomes.
Key ndings of the Sarantakos study are summarized below. To contextualize these data, the numbers are based on a tea-
cher rating-scale of performance ranging from 1 (very low performance), through 5 (moderate performance) to 9 (very high
performance).
44
Based on teacher (not parent) reports, Sarantakos found several signicant differences between married fam-
ilies and homosexual families.
45
Language Achievement Married 7.7, Cohabiting 6.8, Homosexual 5.5
Mathematics Achievement Married 7.9, Cohabiting 7.0, Homosexual 5.5
Social Studies Achievement Married 7.3, Cohabiting 7.0, Homosexual 7.6
Sport Interest/Involvement Married 8.9, Cohabiting 8.3, Homosexual 5.9
Sociability/Popularity Married 7.5, Cohabiting 6.5, Homosexual 5.0
School/Learning Attitude Married 7.5, Cohabiting 6.8, Homosexual 6.5
Parent-School Relationships Married 7.5, Cohabiting 6.0, Homosexual 5.0
Support with Homework Married 7.0, Cohabiting 6.5, Homosexual 5.5
Parental Aspirations Married 8.1, Cohabiting 7.4, Homosexual 6.5
a
a
Sarantakos, 1996, pp. 2427.
Sarantakos concluded, Overall, the study has shown that children of married couples are more likely to do well at school
in academic and social terms, than children of cohabiting and homosexual couples.
46
The APAs decision to de-emphasize the Sarantakos (1996) study was based, in part, on the criticism that nearly all indi-
cators of the childrens functioning were based on subjective reports by teachers.
47
The Sarantakos study was based, in part,
on teacher reports. However, teacher reports included tests and normal school assessment (p. 24). Subsequently, it may be
39
Other arguably contradictory studies are reviewed by Schumm (2011).
40
41
Among the diverse types of gay/lesbian parents there are at least two major categories that warrant scholarly precision: (a) two lesbian or gay parents
raising an adopted or DI (donor insemination) child from infancy with these and only these two parents; and (b) two lesbian or gay parents raising a child who
is the biological offspring of one of the parents, following a separation or divorce from a heterosexual partner. The Sarantakos sample is of the latter (b) type. In
terms of scholarly precision, it is important to differentiate and not draw strong implications from a to b or b to a. Indeed, the author would posit that
adopted versus DI children may also warrant separate consideration. The core issue is that precision is essential and overextension of ndings should be
avoided. This same issue is of serious concern in connection with the tendency to overextend ndings regarding lesbian mothers to apply to gay fathers (see
Regnerus, this volume).
42
Sarantakos (1996, p. 23).
43
In order, these six studies include: (1) Morris et al., 2002 (N = 2431), who addressed adults reports of coming out; (2) Johnson and OConnor (2002)
(N = 415), who addressed adults reports of parenting beliefs, division of labor, etc.; (3) Crawford et al. (1999) (N = 388), who addressed psychologists self-
reports of gay adoption; (4) King and Black (1999) (N = 338), who addressed college students perceptions of gay parents; (5) Bos et al. (2003) (N = 200), who
addressed parental motives and desires; and (6) Bos et al. (2004) (N = 200), who addressed parental reports of couple relations. These foci are not childrens
outcomes.
44
45
Social Studies Achievement is signicant at the p = .008 level; the eight other differences are signicant at the p = .000 level.
46
47
APA Brief (2005), Footnote 1, p. 6 (emphasis added).
SER 644
argued that Sarantakos decision not to rely solely or extensively on parent reports, as is done in most same-sex parenting stud-
ies, is a strength, given parents tendencies towards bias when reporting on their own children.
48
Sarantakos
49
also drew data
from school aptitude tests and observations, thereby modeling a research ideal of triangulation of sources.
50
In fact, the study
integrated not only three data sources to triangulate; it featured at least four (i.e., teachers, tests, observations, and child re-
ports). Further, the study controlled for education, occupation, and socio-economic status and then, based on teacher reports,
compared marriage-based families with gay/lesbian families and found nine signicant differenceswith children from mar-
riage-based families rating higher in eight areas. By objective standards, compared with the studies cited by the APA Brief,
the 1996 Sarantakos study was:
(a) The largest comparison study to examine childrens outcomes,
51
(b) One of the most comparative (only about ve other studies used three comparison groups),
52
and
(c) The most comprehensively triangulated study (four data sources) conducted on same-sex parenting.
53
Accordingly, this study deserves the attention of scientists interested in the question of homosexual and heterosexual
parenting, rather than the footnote it received.
As we conclude the examination of question 4, let us review a portion of APAs published negation of Sarantakos (1996)
study
54
:
[Children Australia, the journal where the article was published] cannot be considered a source upon which one should
rely for understanding the state of scientic knowledge in this eld, particularly when the results contradict those that
have been repeatedly replicated in studies published in better known scientic journals.
For other scientists, however, the salient point behind the Sarantakos ndings is that the novel comparison group of mar-
riage-based families introduced signicant differences in childrens outcomes (as opposed to the recurring no difference
nding with single-mother and couple samples). We now turn to the fth question.
2.5. Question 5: what types of outcomes have been investigated?
With respect to the APA Briefs claim that not a single study has found children of lesbian or gay parents to [have] dis-
advantaged [outcomes], what types of outcomes have been examined and investigated? Specically, how many of the same-
sex parenting studies in Table 1 address the societal concerns of intergenerational poverty, collegiate education and/or labor
force contribution, serious criminality, incarceration, early childbearing, drug/alcohol abuse, or suicide that are frequently
the foci of national studies on children, adolescents, and young adults, as discussed at the outset of this paper?
Anderssen and colleagues cataloged the foci of same-sex parenting studies in a 2002 review and reported
55
:
Emotional functioning was the most often studied outcome (12 studies), followed by sexual preference (nine studies),
gender role behavior (eight studies), behavioral adjustment (seven studies), gender identity (six studies), and cognitive
functioning (three studies).
Examination of the articles cited in the 2005 APA Brief on Lesbian and Gay Parenting yields a list of studied outcomes that
are consistent with Anderssens summary, including: sexual orientation
56
; behavioral adjustment, self-concepts, and
sex-role identity
57
; sexual identity
58
; sex-role behavior
59
; self-esteem
60
; psychosexual and psychiatric appraisal
61
;
socioemotional development
62
; and maternal mental health and child adjustment.
63
48
It is well replicated that individuals tend to rate the group with which they most identify more positively than they do other groups. This positive bias
includes within-family ratings Roese and Olson (2007).
49
Sarantakos is the author of several research methods textbooks (2005, 2007b) and the author/editor of a four-volume, 1672-page work in Sage Publications
Benchmarks in Social Research Series (2007a).
50
Triangulation is a means of checking the integrity of the inferences one draws. It can involve the use of multiple data sources, . . .multiple theoretical
perspectives, multiple methods, or all of these (Schwandt, 2001, p. 257). In effect, the standard of triangulation is advocacy for checks and balances.
51
Six of the 59 studies listed in the 2005 APA Brief (pp. 2345) had larger samples, but, as discussed earlier, they all focused on adult reports of adult
perceptions and outcomes.
52
For example, Brewaeys et al. (1997), Golombok et al. (2003, 1997), MacCallum and Golombok (2004), and Tasker and Golombok (1998).
53
In spite of the strong design with respect to triangulation, the Sarantakos study does not appear to be based on a true probability sample, nor is it or a large
sample (although it is a subsample of a 900-plus study). The study is rigorous by comparison to other same-sex parenting studies, but is limited compared with
most of the nationally representative studies on intact families listed in Table 2.
54
Patterson (2005) in APA Brief, p. 7, Footnote 1.
55
Anderssen et al. (2002, p. 343).
56
Bailey et al. (1995) and Golombok and Tasker (1996).
57
Patterson (1994).
58
Green (1978).
59
Hoeffer (1981) and Kweskin and Cook (1982).
60
Huggins (1989).
61
Golombok et al. (1983).
62
Golombok et al. (1997).
63
Patterson (2001).
SER 645
With these focal outcomes identied, it is noteworthy that all of the aforementioned outcomes of societal-level concern
are absent from the list of most often studied outcome(s) as identied by Anderssen et al.
64
In response to the present arti-
cles question 5 (what types of outcomes have been investigated for children of gay/lesbian families?), it may be concluded: In
the same-sex parenting research that undergirded the 2005 APA Brief, it appears that gender-related outcomes were the dom-
inant research concern. To be more precise, Table 1 lists several categories of information regarding the 59 published empirical
studies; one of these categories is the outcome studied. More than 20 studies have examined gender-related outcomes, but
there was a dearth of peer-reviewed journal articles from which to form science-based conclusions in myriad areas of societal
concern.
65
One book-length empirical study
66
entitled Same-Sex Couples (Sarantakos, 2000, Harvard Press) did examine several issues
of societal concern. In connection with the questions raised in the present article, this study:
(1) includes a diverse sample of lesbian and gay parents instead of focusing on privileged lesbian mothers (question 1);
(2) uses not only one but two heterosexual comparison samples; one married parent sample and one cohabitating parent
sample (questions 2 and 3);
(3) examines several outcomes of societal concern (question 5); and
(4) is unique in presenting long-term (post-18 years old) outcomes of children with lesbian and gay parents (question 6,
addressed later).
This studys conclusion regarding outcomes of gay and lesbian parents reads, in part:
If we perceive deviance in a general sense, to include excessive drinking, drug use, truancy, sexual deviance, and criminal
offenses, and if we rely on the statements made by adult children (over 18 years of age). . .[then] children of homosexual
parents report deviance in higher proportions than children of (married or cohabiting) heterosexual couples (Sarantakos,
2000, p. 131).
The 2005 APA Brief does not cite this study, again leaving us to more closely examine the claim that Not a single study
has found children of lesbian or gay parents to be disadvantaged in any signicant respect relative to children of heterosex-
ual parents (p. 15).
The Sarantakos (2000) study also includes the report that the number of children who were labeled by their parents as
gay, or identied themselves as gay, is much higher than the generally expected proportion (p. 133). However, the study
also notes areas of no signicant heterosexualhomosexual differences (i.e., Physical and emotional well-being, p. 130),
consistent with the 2005 APA Briefs claims. All of these ndings warranted attention in the 2005 APA Brief but were over-
looked. Of most interest to us here, however, is the novel attention of Sarantakos (2000) on multiple concerns of societal
importance, including drug and alcohol abuse, education (truancy), sexual activity, and criminality.
In any less-developed area of empirical inquiry it takes time, often several decades, before many of the central and most
relevant questions can be adequately addressed. This seems to be the case with same-sex parenting outcomes, as several
issues of societal concern were almost entirely unaddressed in the 2005 APA Brief.
2.6. Question 6: what do we know about the long-term outcomes of children of lesbian and gay parents?
In the preceding response to question 5, the outcomes of intergenerational poverty, criminality, college education and/or
labor force contribution, drug/alcohol abuse, suicide, early sexual activity, early childbearing, and eventual divorce as adults
were mentioned. Close consideration reveals that the majority of these outcomes are not child outcomes. Indeed, most of
these outcomes are not optimally observable until (at the earliest) mid-late adolescence or early adulthood (and in the case
of divorce, not until middle adulthood). As discussed in question 5, virtually none of the peer-reviewed, same-sex parenting
comparison studies addressed these outcomes.
67
Additionally, of the 59 published studies cited by the APA 2005 Brief (pp. 2345), it is difcult to nd comparison studies
of any kind that examine late adolescent outcomes of any kind. The few that utilize comparison groups have comparison
groups of 44 or fewer.
68
Let us further explore the importance of a lack of data centered on adolescents and young adults.
Table 2 identies 15 of the hundreds of available studies on outcomes of children from intact families (as contrasted with
comparison groups such as cohabiting couples and single parents). One of these studies included a data set of 35,938 chil-
drenone of the largest. . .nationally representative survey[s] of US children and their parents.
69
Based on analysis of this
64
65
Including: intergenerational poverty, criminality, college education and/or labor force contribution, drug/alcohol abuse, suicide, sexual activity and early
childbearing, and eventual divorce.
66
This study is a later, larger, and more detailed report on the earlier mentioned Sarantakos (1996) study. The sample of that study was larger than the other
comparison samples in Table 1.
67
Gartrell and colleagues (1999, 2000, 2005) have commenced to do so, but in 2005 they were reporting on children who were only 10 years old (with a
sample size of 74 and no heterosexual comparison group).
68
I.e. Wainwright et al. (2004).
69
Brown (2004), p. 355.
SER 646
nationally representative sample, Susan Brown emphasized, The ndings of this study. . .demonstrate the importance of sep-
arately examining children and adolescents. She then explained
70
:
Although the outcomes of children (611 years old) in cohabiting families. . .are worse. . .than those of children in two-
biological-parent married families, much of this difference. . .is economic. . .. In contrast, regardless of economic and
parental resources, the outcomes of adolescents (1217 years old) in cohabiting families. . .are worse. . .than those. . .in
two-biological-parent married families.
In short, in the case of cohabiting families and two-biological-parent married families the differences in childrens out-
comes increase in signicance as the children grow older. The likelihood of signicant differences arising between children
from same-sex and married families may also increase across timenot just into adolescence but into early and middle
adulthood. For example, research indicates that [d]aughters raised outside of intact marriages are. . .more likely to end
up young, unwed mothers than are children whose parents married and stayed married, and that [p]arental divorce in-
creases the odds that adult children will also divorce.
71
Longitudinal studies that follow children across time and into adulthood to examine such outcomes are comparatively
rare and valuable. We briey turn to a key nding from one such study that followed children of divorce into middle adult-
hood. Based on a 25-year longitudinal study, Wallerstein and colleagues (2001) state:
Contrary to what we have long thought, the major impact of divorce does not occur during childhood or adolescence.
Rather, it rises in adulthood as serious romantic relationships move center stage. When it comes time to choose a life
mate and build a new family, the effects of divorce crescendo (p. xxix).
Wallersteins research, like nearly all of the studies in the same-sex parenting literature, is based on a small, non-repre-
sentative sample that should not be generalized or overextended. Her longitudinal work does, however, indicate that effects
[can] crescendo in adulthood. Did any published same-sex parenting study cited by the 2005 APA Brief (pp. 2345) track the
societally signicant long-term outcomes into adulthood? No. Is it possible that the major impact of same-sex parenting
might not occur during childhood or adolescence. . .[but that it will rise] in adulthood as serious romantic relationships
move center stage? Is it also possible that when it comes time to choose a life mate and build a new family that the effects
of same-sex parenting will similarly crescendo as they did in Wallersteins study of divorce effects? In response to this or
any question regarding the long-term, adult outcomes of lesbian and gay parenting we have almost no empirical basis for
responding. An exception is provided by the ndings from self-reports of adult children (18 + years of age) in Sarantakos
(2000) book-length study, but those results not encouraging. This is a single study howevera study that, like those cited by
the APA Brief, lacks the statistical power and rigor of the large, random, representative samples used in marriage-based fam-
ily studies (see Table 2). We now move to a nal related empirical question regarding the same-sex parenting literature.
2.7. Question 7: have the studies in this area committed the type II error and prematurely concluded that heterosexual couples and
gay and lesbian couples produce parental outcomes with no differences?
The Summary of Research Findings in the APA brief reads, As is true in any area of research, questions have been raised
with regard to sampling issues, statistical power, and other technical matters (p. 5). However, neither statistical power nor
the related concern of Type II error is further explained or addressed. This will be done next.
In social science research, questions are typically framed as follows: Are we 95% sure the two groups being compared are
different? (p < .05). If our statistics seem to conrm a difference with 95% or greater condence, then we say the two groups
are signicantly different. But what if, after statistical analysis, we are only 85% sure that the two groups are different? By
the rules of standard social science, we would be obligated to say we were unable to satisfactorily conclude that the two
groups are different. However, a reported nding of no statistically signicant difference (at the p < .05 level; 95%-plus cer-
tainty) is a grossly inadequate basis upon which to offer the science-based claim that the groups were conclusively the
same. In research, incorrectly concluding that there is no difference between groups when there is in fact a difference is
referred to as a Type II error. A Type II error is more likely when undue amounts of random variation are present in a study.
Specically, small sample size, unreliable measures, imprecise research methodology, or unaccounted for variables can all
increase the likelihood of a Type II error. All one would have to do to be able to come to a conclusion of no difference
is to conduct a study with a small sample and/or sufcient levels of random variation. These weaknesses compromise a
studys statistical power (Cohen, 1988).
It must be re-emphasized that a conclusion of no signicant difference means that it is unknown whether or not a dif-
ference exists on the variable(s) in question (Cohen, 1988). This conclusion does not necessarily mean that the two groups
are, in fact, the same on the variable being studied, much less on all other characteristics. This point is important with same-
sex parenting research because Patterson (1992, 2000) and the 2005 APA Brief seem to drawinferences of sameness based on
the observation that gay and lesbian parents and heterosexual parents appear not to be statistically different from one an-
other based on small, non-representative samplesthereby becoming vulnerable to a classic Type II error.
70
Brown (2004), p. 364.
71
Wilcox et al. (2011), p. 11.
SER 647
To make the APA Briefs proposition of sameness more precarious, in a review published one year after the APA Brief in
the agship APA journal, American Psychologist, Herek (2006) acknowledged that many same-sex parenting studies have
utilized small, select convenience samples and often employed unstandardized measures.
72
Anderssen et al. (2002) simi-
larly indicated in their review of same-sex parenting studies, The samples were most often small, increasing the chance to con-
clude that no differences exist between groups when in fact the differences do exist. This casts doubt on the external validity of
the studies.
73
With these limitations noted, the 2005 APA Brief explicitly claimed that ndings of non-signicant differences
between same-sex and heterosexual parents had been repeatedly replicated (p. 7, Footnote 1).
Reasons for skepticism regarding the APA Briefs claim that ndings have been repeatedly replicated rest in Neumans
(1997) point that the logic of replication implies that different researchers are unlikely to make the same errors.
74
How-
ever, if errors (e.g., similarly biased sampling approaches employing small, select convenience samples
75
and comparison
groups) are repeated by different researchers, the logic behind replication is undermined. As has been previously detailed in
the response to question 1 in this article, same-sex parenting researchers have repeatedly selected White, well-educated, mid-
dle- and upper-class lesbians to represent same-sex parents. This tendency recurred even after this bias was explicitly identied
by Patterson (1992, 2000).
76
Further, repeated sampling tendencies in connection with heterosexual comparison groups (e.g.,
single mothers), were documented in response to Question 3 in this paper. These repeated (convenience) sampling tendencies
across studies that employed different measures do not seem to constitute valid scientic replication.
An additional scientic question raised by the above information regarding small, select convenience
77
samples is
framed by Stacey and Biblarz (2001) who reveal that many of these [comparative same-sex parenting] studies use conventional
levels of signicance. . .on miniscule samples, substantially increasing their likelihood of failing to reject the null hypothesis.
78
Was the APAs claim that Not a single study has found children of lesbian or gay parents to be disadvantaged. . .
79
based on
clear scientic evidence or (perhaps) Type II errors? In response, we now turn to the APA-acknowledged but unexplained cri-
tique of low statistical power in these studies (p. 5).
The last three editions of the APA Publication manual (1994, 2001, 2010) have urged scholars to report effect sizes and to
take statistical power into consideration when reporting their results. The APA 5th Publication manual (2001) in use at the
time of APAs 2005 Brief on Lesbian and Gay Parenting stated:
Take seriously the statistical power considerations associated with your tests of hypotheses. Such considerations relate to
the likelihood of correctly rejecting the tested hypotheses, given a particular alpha level, effect size, and sample size. In
that regard, you should routinely provide evidence that your study has power to detect effects of substantive interest
(e.g., see Cohen, 1988). You should be similarly aware of the role played by sample size in cases in which not rejecting
the null hypothesis is desirable (i.e., when you wish to argue that there are no differences [between two groups]). . .
(p. 24).
This awareness of statistical power in cases when you wish to argue that there are no differences bears directly on
same-sex comparative research. The APA 5th Publication manual (2001) continues:
Neither of the two types of probability [alpha level or p value] directly reects the magnitude of an effect or the strength
of a relationship. For the reader to fully understand the importance of your ndings, it is almost always necessary to
include some index of effect size or strength of relationship in your Results section (p. 25).
Let us review three statements from the APA 5th Publication Manual for emphasis:
(1) The APA urges researchers to: Take seriously the statistical power considerations and routinely provide evidence
(p. 24).
(2) The APA identies a specic concern with sample size and statistical power in connection with cases where authors
wish to argue that there are no differences between compared groups (p. 24).
(3) The APA concludes: It is almost always necessary to include some index of effect size or strength of relationship in
your Results section (p. 25).
The APAs rst highlighted exhortation is that an author should routinely provide evidence that your study has sufcient
power. . .(e.g., see Cohen, 1988) (p. 24). The reference cited here by the APA is the volume Statistical Power Analysis for the
Behavioral Sciences (2nd ed.) by the late psychometrician Jacob Cohen, who has been credited with foundational work in sta-
tistical meta-analysis (Borenstein, 1999). In his APA-cited volume, Cohen states:
72
Herek (2006), p. 612.
73
Anderssen et al. (2002), p. 348.
74
Neuman (1997), p. 150.
75
Herek (2006), p. 612.
76
Further, single mothers have been repeatedly selected to represent heterosexual parents as documented in this papers response to question 3.
77
Herek (2006), p. 612.
78
Stacey and Biblarz (2001, p. 168), Footnote 9.
79
SER 648
Most psychologists of whatever stripe believe that samples, even small samples, mirror the characteristics of their parent
populations. In effect, they operate on the unstated premise that the law of large numbers holds for small numbers as
well. . .. [Citing Tversky and Kahneman] The believer in the law of small numbers has incorrect intuitions about signif-
icance level, power, and condence intervals. Signicance levels are usually computed and reported, but power and con-
dence levels are not. Perhaps they should be.
But as we have seen, too many of our colleagues have not responded to [this] admonition. . .. They do so at their
peril (p. xv).
Let us contextualize the law of small numbers with respect to the same-sex parenting studies cited in the APA Brief. The
combined non-representative sample total of all 59 same-sex parenting studies in the 2005 APA Brief (pp. 2345) is 7800
80
(see Table 1). By comparison, Table 2 lists 15 prominent studies that contrast childrens outcomes in intact, single-parent, di-
vorced, and/or step-family forms using large probability samples and comparison groups.
81
The average sample size in these
studies is 9911
82
a gure larger than all 59 same-sex parenting studies combined (7800).
We now turn to another question relating to Cohens statements: How many of the published same-sex parenting studies
with a heterosexual comparison group cited in APAs Brief (pp. 2345) provide[d] evidence of statistical power, consistent
with APAs Publication Manual and the admonition of Jacob Cohen who is cited in the APA manual? An examination of the
studies indicates that only four of the 59 did so.
83
In addition to Cohens (1988) statement that statistical power is ignored at our own peril, he offered several tables in his
volume for researchers to reference. Employing these tables, statistical experts Lerner and Nagai (2001) computed the sam-
ple sizes required for a power level of .80, or a Type II error rate of .20, or one in ve ndings (p. 102). At this power level,
the minimum number of cases required to detect a small effect size
84
is 393 for a T-test or ANOVA, or 780-plus for Chi-Square
or Pearson Correlation Coefcient tests.
85
In Table 1 of this report, the 59 published same-sex parenting studies cited in the APA
Brief (pp. 2345) are compared against these standards. A close examination indicates that not a single study, including the few
that reported power, meets the standards needed to detect a small effect size. Indeed, it appears that only two of the comparison
studies (Bos et al., 2003, 2004) have combined sample sizes of even half of the minimum number of cases.
86
In their book-length examination of same-sex parenting studies, Lerner and Nagai (2001) further indicate that 17 of the
22 same-sex parenting comparison studies they reviewed had been designed in such a way that the odds of failing to nd a
signicant difference [between homo- and hetero-sexual groups] was 85% or higher.
87
Indeed, only one of the 22 studies they
analyzed revealed a probability of Type II error below 77 percent, and that study did nd differences.
88
These methodological
concerns (and others) were raised and explained in Lerner and Nagais monograph (see pp. 95108), and in an 81-page report by
Nock (2001) preceding the APA Brief.
89
Nock concluded:
All of the [same-sex parenting] articles I reviewed contained at least one fatal aw of design or execution. Not a single one
was conducted according to generally accepted standards of scientic research. . .. [I]n my opinion, the only acceptable
conclusion at this point is that the literature on this topic does not constitute a solid body of scientic evidence (Nock,
2001, pp. 39, 47).
80
This gure (7800) includes same-sex parents and their children, as well as heterosexual comparison samples (1404), psychologists (388), and college
students perception reports (489).
81
Table 2 lists 15 studies that contrast childrens outcomes in intact families compared with other family forms using large, probability samples and
comparison groups. The focal topics of these studies are not sexual preference, gender role behavior. . .[and] gender identity (Anderssen et al., 2002, p. 343),
but outcomes such as educational attainment, labor force attachment, and early childbearing (McLanahan and Sandefur, 1994, pp. 2021 ), as
recommended in the earlier examination of question 5. Further, all but two of the 15 studies employ longitudinal designs, as recommended in the earlier
examination of question 6.
82
This gure is the result of 148,667 divided by 15 studies.
83
These include Chan et al. (1998b), Fulcher et al. (2002), Golombok and Tasker (1996), and Tasker and Golombok (1997).
84
By way of context, in a 67 study meta-analysis of the average differences in outcomes between children with divorced and continuously marriedparents,
Amato (2001) reported an average weighted effect size of between 0.12 and 0.22 (a 0.17 average) with an advantage in all ve domains considered to
children of continuously married parents (p. 360). These effect sizes of about .20, although statistically robust, would be classied by Cohen (1992) as small
effect sizes. Even so, based on the data, most family scholars would agree that children whose parents remain continuously married tend to fare slightly to
moderately better than when parents divorce. However, large numbers were needed to determine this small but important effect. Indeed, most effect sizes in
social science research tend to be small. Rigorous and sound social science tends to include and account for many inuential factors that each has a small but
meaningful effect size. In social science, detecting a novel large effect from a single variable (whether it is divorce, remarriage, or same-sex parenting), is a
comparatively rare occurrence. If we are to examine possible effects of same-sex parenting with scientic precision and rigor, related examinations would, like
Amatos work, be designed and rened to detect small effect sizes.
85
Cohen (1988) proposes a relatively high power of .90 for cases where one is trying to demonstrate the r [difference] is trivially small (p. 104). If the .90
power were applied, the required sample sizes would further increase. However, because none of the studies in Table 1 of the present report approach the .80
power levels, .90 calculations are unnecessary here.
86
The minimum number of cases is 393. The two Bos et al. studies both have combined samples of 200. Four other larger samples are not comparison
studies Crawford et al. (1999), Johnson and OConnor (2002), King and Black (1999), and Morris et al. (2002).
87
Lerner and Nagai (2001, p. 103).
88
The single exception was Cameron and Cameron (1996) with a comparatively low probability error rate of 25%. This study, like the Sarantakos (1996) study
mentioned earlier, did report some signicant differences between children of heterosexual and homosexual parents but, like Sarantakos (1996), was not
addressed in the body of the 2005 APA brief but was instead moved to a footnote on p. 7. See Redding (2008) for additional discussion (p. 137).
89
For similar critiques preceding the 2005 APA brief, seeNock (2001), Schumm (2004), Wardle (1997), and Williams (2000). For similar critiques post-dating
the 2005 APA brief, see Byrd (2008), Schumm (2010a,b, 2011), and Redding (2008, p. 138).
SER 649
More specically, Nock identied: (a) several aws related to sampling (including biased sampling, non-probability sam-
pling, convenience sampling, etc.); (b) poorly operationalized denitions; (c) researcher bias; (d) lack of longitudinal studies;
(e) failure to report reliability; (f) low response rates; and (g) lack of statistical power (pp. 3940).
90
Although some of these
aws are briey mentioned in the 2005 APA Summary of Research Findings on Lesbian and Gay Parenting, many of the signif-
icant concerns raised by Nock or Lerner and Nagai are not substantively addressed.
91
Indeed, the Lerner and Nagai volume and
the Nock report are neither mentioned nor referenced.
To restate, in connection with the APAs published urging that researchers: Take seriously the statistical power consid-
erations and routinely provide evidence, the academic reader is left at a disadvantage.
92
Only a few comparison studies
specically reported statistical power at all and no comparison study approached the minimum sample size of 393 needed
to nd a small effect.
The authors response to question 7 has examined how comparisons have been made from a research methods stand-
point. In summary, some same-sex parenting researchers have acknowledged that miniscule samples
93
signicantly in-
crease the chance to conclude that no differences exist between groups when in fact the differences do existthereby
casting doubt on the external validity of the studies.
94
An additional concern is that the APA Briefs claim of repeatedly rep-
licated ndings of no signicant difference rested almost entirely on studies that were published without reports of the APA-
urged effect sizes and statistical power analyses.
95
This inconsistency seems to justify scientic skepticism, as well as the effort
of more closely assessing the balance, precision, and rigor behind the conclusions posed in the 2005 APA Brief.
3. Conclusion
The 2005 APA Brief, near its outset, claims that even taking into account all the questions and/or limitations that may
characterize research in this area, none of the published research suggests conclusions different from that which will be
summarized (p. 5). The concluding summary later claims, Indeed, the evidence to date suggests that home environments
provided by lesbian and gay parents are as likely as those provided by heterosexual parents to support and enable childrens
psychosocial growth (p. 15).
96
We now return to the overarching question of this paper: Are we witnessing the emergence of a new family form that
provides a context for children that is equivalent to the traditional marriage-based family? Even after an extensive reading
of the same-sex parenting literature, the author cannot offer a high condence, data-based yes or no response to this
question. To restate, not one of the 59 studies referenced in the 2005 APA Brief (pp. 2345; see Table 1) compares a large,
random, representative sample of lesbian or gay parents and their children with a large, random, representative sample of
married parents and their children. The available data, which are drawn primarily from small convenience samples, are
insufcient to support a strong generalizable claim either way. Such a statement would not be grounded in science. To make
a generalizable claim, representative, large-sample studies are neededmany of them (e.g., Table 2).
Some opponents of same-sex parenting have made egregious overstatements
97
disparaging gay and lesbian parents.
Conversely, some same-sex parenting researchers seem to have contended for an exceptionally clear
98
verdict of no differ-
ence between same-sex and heterosexual parents since 1992. However, a closer examination leads to the conclusion that
strong, generalized assertions, including those made by the APA Brief, were not empirically warranted.
99
As noted by Shiller
(2007) in American Psychologist, the line between science and advocacy appears blurred (p. 712).
The scientic conclusions in this domain will increase in validity as researchers: (a) move from small convenience sam-
ples to large representative samples; (b) increasingly examine critical societal and economic concerns that emerge during
adolescence and adulthood; (c) include more diverse same-sex families (e.g., gay fathers, racial minorities, and those without
middle-high socioeconomic status); (d) include intact, marriage-based heterosexual families as comparison groups; and (e)
90
Four of these seven issues are addressed in the present paper. The exceptions include researcher bias, failure to report reliability, and low response rates.
91
The 2005 APA Briefs Summary on Research Findings acknowledges criticisms of same-sex parenting research including: (a) non-representative sampling,
(b) poorly matched or no control groups, (c) well-educated, middle class [lesbian] families, and (d) relatively small samples (p. 5). The respective
responses to these criticisms in the APA brief are: (a) contemporary research on children of lesbian and gay parents involves a wider array of sampling
techniques than did earlier studies; (b) contemporary research on children of lesbian and gay parents involves a wider array of research designs (and hence,
control groups) than did earlier studies; (c) contemporary research on children of lesbian and gay parents involves a greater diversity of families than did
earlier studies; and (d) contemporary research has beneted from such criticisms (p. 5). The APA Brief does not challenge the validity of these research
criticisms but notes that improvements are being made.
92
See Schumm (2010b) for more comprehensive, article-length treatment of these statistical issues.
93
Stacey and Biblarz (2001, p. 168).
94
95
Schumm (2010b).
96
The APA Brief also states that the existing data are still limited, and any conclusions must be seen as tentative. Also, that it should be acknowledged that
research on lesbian and gay parents and their children, though no longer new, is still limited in extent (p. 15). For some scientists, these salient points seem to
be overridden by the APA Briefs conclusions.
97
This reality has been disapprovingly documented by Shiller (2007).
98
Patterson (1992).
99
In 2006, the year following APAs release of the brief on Lesbian and Gay Parenting, former APA president Nicholas Cummings argued that there has been
signicant erosion of the APAs established principle (Shiller (2007), p. 712). . .that when we speak as psychologists we speak from research evidence and
clinical experience and expertise (Cummings (2006), p. 2).
SER 650
constructively respond to criticisms from methodological experts.
100
Specically, it is vital that critiques regarding sample
size, sampling strategy, statistical power, and effect sizes not be disregarded. Taking these steps will help produce more meth-
odologically rigorous and scientically informed responses to signicant questions affecting families and children.
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Weitoft, G.R. et al, 2003. Mortality, severe morbidity, and injury in children living with single parents in Sweden: a population-based study. The Lancet 361,
289295.
Wilcox, W.B. et al, 2005. Why Marriage Matters, second ed. Institute for American Values, New York.
Wilcox, W.B. et al, 2011. Why Marriage Matters, third ed. Institute for American Values, New York.
Williams, R.N., 2000. A critique of the research on same-sex parenting. In: Dollahite, D.C. (Ed.), Strengthening Our Families. Bookcraft, Salt Lake City, UT, pp.
325355.
Wolnger, N.H., 2005. Understanding the Divorce Cycle: The Children of Divorce in their Own Marriages. Cambridge University Press, New York.
Wright, J.M., 1998. Lesbian Stepfamilies: An Ethnography of Love. Harrington Park, New York.
SER 653

12-2335 (L)
12-2435 (Con)
FOR THE SECOND CIRCUIT

EDITH SCHLAIN WINDSOR, In her Official capacity as
Executor of the estate of Thea Clara Spyer,

Plaintiff-Appellee,
v.

THE BIPARTISAN LEGAL ADVISORY GROUP OF
THE UNITED STATES HOUSE OF REPRESENTATIVES,

Intervenor-Defendant-Appellant,

UNITED STATES OF AMERICA,

Defendant-Appellant.

On Appeal from United States District Court
for the Southern District of New York

BRIEF OF AMI CUS CURI AE, AMERICAN COLLEGE OF
PEDIATRICIANS, IN SUPPORT OF INTERVENOR-APPELLANT
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES
HOUSE OF REPRESENTATIVES.

Vincent P. McCarthy
11 W. Chestnut Hill Road
Litchfield, CT 06759
P-860-567-9485
F-860-567-9513
vpm08@msn.com
Case: 12-2335 Document: 169 Page: 1 08/17/2012 696375 29
SER 654

i
CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned states
that the amicus is not a corporation that issues stock or has a parent corporation
that issues stock.
/s/ Vincent P. McCarthy
Vincent P. McCarthy
Counsel for the Amicus
August 17, 2012

SER 655

ii
Table of Contents
Table of Authorities ................................................................................................. iii
Interest of the Amicus and Consent to File ................................................................ 1
ARGUMENT ............................................................................................................. 2
I. Existing research on child outcomes for children raised by same-sex
couples as compared to married husband-wife couples is significantly
limited and actually suggests differences that do not bode well for
children.. .......................................................................................................... 4

II. Children benefit from the unique parenting contributions of both men
and women.. ................................................................................................... 10

III. Courts should act with extreme caution in making social and
constitutional policy when relying on provisional social science data. ........ 14

CONCLUSION ........................................................................................................ 18

SER 656

iii
Table of Authorities
Cases
Bowen v. Gilliard, 483 U.S. 587, 614 (1987) .......................................................... 10
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ................... 14
Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8
th
Cir. 1997) ............................... 17
Lofton v. Secretary of the Department of Children and Family Services, 358
F.3d 804 (11th Cir. 2004) ....................................................................................... 6
Other Authorities
Affidavit of Professor Steven Lowell Nock, Halpern v. Attorney General of
Canada, Case No. 684/00 (Ontario Sup. Ct. Justice 2001) .................................... 5
Bruce J. Ellis, Does Father Absence Place Daughters at Special Risk for
Early Sexual Activity and Teenage Pregnancy? 74 CHILD DEVELOPMENT
801 (2003) ............................................................................................................. 14
Bruce J. Ellis, Quality of Early Family Relationships and Individual
Differences in the Timing of Pubertal Maturation in Girls: A Longitudinal
Test of an Evolutionary Model 77 JOURNAL OF PERSONALITY AND SOCIAL
PSYCHOLOGY 387 (1999) ...................................................................................... 14
C.A. Nelson and M. Bosquet, Neurobiology of Fetal and Infant
Development: Implications for Infant Mental Health, in HANDBOOK OF
INFANT MENTAL HEALTH 37 (2d ed., C.H. Zeanah Jr., editor, 2000) ................... 11
Daniel Paquette & Mark Bigras, The Risky Situation: A Procedure for
Assessing the Father-Child Activation Relationship, 180 EARLY
CHILDHOOD DEVELOPMENT & CARE 33 (2010) .................................................... 13
Daniel Potter, Same-Sex Parent Families and Childrens Academic
Achievement 74 JOURNAL OF MARRIAGE & FAMILY 556 (2012) ............................ 8
David L. Faigman, Legal Alchemy: The Use and Misuse of Science in the
Law 2 YALE SYMP. L. & TECH. 3 (2000) .............................................................. 15
DAVID POPENOE, LIFE WITHOUT FATHER (1996) ..................................................... 13
SER 657

iv
Edward Phillips, Testing the Truth: The Alliance of Science and Law in
CRIMINAL JUSTICE IN CRISIS 229 (Mike McConville & Lee Bridges, eds.,
1994) ..................................................................................................................... 16
ELEANOR MACOBY, THE TWO SEXES (1998) ..................................................... 12, 14
FIONA TASKER & SUSAN GOLOMBOK, GROWING UP IN A LESBIAN FAMILY:
EFFECTS ON CHILD DEVELOPMENT 133 (Gulliford Press 1997) .............................. 9
Fiona Tasker, Lesbian Mothers, Gay Gathers and Their Children; A Review
26 DEVELOPMENTAL AND BEHAVIORAL PEDIATRICS 224 (2005) ............................ 6
JAMES Q. WILSON, THE MARRIAGE PROBLEM 169 (2002) ....................................... 12
Jennifer L. Wainwright, Delinquency, Victimization, and Substance Use
Among Adolescents with Fame Same Sex Parents 20 JOURNAL OF FAMILY
PSYCHOLOGY 526 (2006) ........................................................................................ 8
Jim Manzi, What Social Science Doesand DoesntKnow CITY JOURNAL
(Summer 2010) at http://city-journal.org/printable.php?id=6330 ........................ 18
Judith Stacey & Timothy Biblarz, (How) Does the Sexual Orientation of
Parents Matter? 66 AMERICAN SOCIOLOGY REVIEW 159 (2001) ......................... 16
Kristin Anderson Moore, Susan M. Jekielek, and Carol Emig, Marriage
from a Child's Perspective: How Does Family Structure Affect Children,
and What Can We Do about It? CHILD TRENDS RESEARCH BRIEF (June
2002) ....................................................................................................................... 2
KYLE D. PRUETT & MARSHA KLINE PRUETT, PARTNERSHIP PARENTING: HOW
MEN AND WOMEN PARENT DIFFERENTLY WHY IT HELPS YOUR KIDS AND
CAN STRENGTHEN YOUR MARRIAGE (2009) ......................................................... 12
Linda Carroll, Dads Empower Kids to Take Chances, MSNBC, June 18,
2010 ....................................................................................................................... 13
Loren D. Marks, Same-Sex Parenting and Childrens Outcomes: A Closer
Examination of the American Psychological Associations Brief on
Lesbian and Gay Parenting 41 SOCIAL SCIENCE RESEARCH 735 (2012) ............... 5
SER 658

v
Lorraine Blackman et al., The Consequences of Marriage for African-
Americans: A Comprehensive Literature Review (Institute for American
Values, 2005) .......................................................................................................... 2
M. DeWolff and M. van Izjendoorn, Sensitivity and Attachment: A Meta-
Analysis on Parental Antecedents of Infant Attachment 68 CHILD
DEVELOPMENT 571 (1997) .................................................................................... 11
M. Main and J. Solomon, Discovery of an Insecure-Disorganized
Disoriented Attachment Pattern, in AFFECTIVE DEVELOPMENT IN INFANCY
95 (T.B. Brazelton and M.W. Yogman eds., 1986) .............................................. 11
M. Neil Browne & Ronda R. Harrison-Spoerl, Putting Expert Testimony In
Its Epistemological Place: What Predictions of Dangerousness in Courts
Can Teach Us 91 MARQ. L. REV. 1119 (2008) .............................................. 15, 16
Mark D. Regnerus and Laura B. Luchies, The Parent-Child Relationship and
Opportunities for Adolescents First Sex 27 JOURNAL OF FAMILY ISSUES
159 (2006) ............................................................................................................. 14
Mark Regnerus, How Different are the Adult Children of Parents who have
Same-Sex Relationships? Findings from the New Family Structures Study
41 SOCIAL SCIENCE RESEARCH 752 (2012) .................................................... 6, 7, 8
Michael E. Lamb, Fathers: Forgotten Contributors to Child Development 18
HUMAN DEVELOPMENT 245 (1975) ....................................................................... 10
Michael J. Rosenfeld, Nontraditional Families and Childhood Progress
through School 47 DEMOGRAPHY 755 (2010) ........................................................ 3
Michael W. Lamb, Fathers and Child Development: An Introductory
Overview and Guide in THE ROLE OF THE FATHER IN CHILD DEVELOPMENT
1 (Michael E. Lamb, editor, third edition 1997) ................................................... 13
Nanette Gartrell, et al., Adolescents of the U.S. National Longitudinal
Lesbian Family Study: Sexual Orientation, Sexual Behavior, and Sexual
Risk Exposure 40 ARCHIVES OF SEXUAL BEHAVIOR 1199 (2011) .......................... 9
Naomi Goldberg, et al., Substance Use by Adolescents of the USA National
Longitudinal Lesbian Family Study 16 JOURNAL OF HEALTH PSYCHOLOGY
1 (2011) ................................................................................................................... 9
SER 659

vi
Norval D. Glenn, The Struggle for Same Sex Marriage 41 SOCIETY 25
(2004) ...................................................................................................................... 5
Paul Amato, More Than Money? Mens Contributions to Their Childrens
Lives? in MEN IN FAMILIES, WHEN DO THEY GET INVOLVED? WHAT
DIFFERENCE DOES IT MAKE? 267 (Alan Booth and Ann C. Crouter, eds.
1998) ..................................................................................................................... 12
Paul R. Amato and Fernando Rivera, Paternal Involvement and Childrens
Behavior Problems 61 JOURNAL OF MARRIAGE & FAMILY 375 (1999) ............... 14
Paul R. Amato, Parental Absence During Childhood and Depression In
Later Life 32 SOCIOLOGICAL QUARTERLY 543 (1991) ........................................... 2
Paul R. Amato, The Impact of Family Formation Change on the Cognitive,
Social and Emotional Well-Being of the Next Generation 15 FUTURE OF
CHILDREN 75 (2005) ............................................................................................... 3
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), Trial
Transcript .............................................................................................................. 11
ROBERT LERNER & ALTHEA K. NAGAI, NO BASIS: WHAT THE STUDIES DON'T
TELL US ABOUT SAME-SEX PARENTING (Washington DC: Marriage Law
Project, 2001) .......................................................................................................... 5
ROSS D. PARKE, FATHERHOOD (1996) ............................................................... 12, 13
Sandra L. Hofferth et al., The Demography of Fathers: What Fathers Do, in
HANDBOOK OF FATHER INVOLVEMENT: MULTIDISCIPLINARY PERSPECTIVES
81 (Catherine Tamis-Lamonda and Natasha Cabrera eds., 2002) ........................ 11
SARA MCLANAHAN AND GARY SANDEFUR, GROWING UP WITH A SINGLE
PARENT: WHAT HURTS, WHAT HELPS (1994) ......................................................... 3
SCOTT COLTRANE, FAMILY MAN (1996) .................................................................. 11
Shmuel Shulman & Moshe M. Klein, Distinctive Role of the Father in
Adolescent Separation - Individuation 1993 NEW DIRECTIONS FOR CHILD
& ADOLESCENT DEVELOPMENT 41 (1993) ............................................................ 13
SER 660

vii
Susan Golombok, et al., Children With Lesbian Parents: A Community
Study 39 DEVELOPMENTAL PSYCHOLOGY 20 (2003) .............................................. 9
Susan Golombok, et. al, Children Raised in Fatherless Families from
Infancy: Family Relationships and the Socioemotional Development of
Children of Lesbian and Single Heterosexual Mothers 38 JOURNAL OF
CHILD PSYCHOLOGY & PSYCHIATRY 783 (1997) .................................................... 9
Suzanne A. Denham et al., Prediction of Externalizing Behavior Problems
From Early to Middle Childhood: The Role of Parental Socialization and
Emotion Expression, in DEVELOPMENT AND PSYCHOPATHOLOGY 23 (2000) ....... 12
Theodore Sirota, Adult Attachment Style Dimensions in Women Who Have
Gay or Bisexual Fathers 23 ARCHIVES OF PSYCHIATRIC NURSING 289
(2009) .................................................................................................................... 10
Thomas G. Powers et al., Compliance and Self-Assertion: Young Childrens
Responses to Mothers Versus Fathers, 30 DEVELOPMENTAL PSYCHOLOGY
980 (1994) ............................................................................................................. 13
W. Bradford Wilcox et al., Why Marriage Matters: 26 Conclusions from the
Social Sciences (2d edition, Institute for American Values 2005) ......................... 2
Walter R. Schumm, What Was Really Learned from Tasker & Golombok's
(1995) Study of Lesbian & Single Parent Mothers? 94 PSYCHOLOGICAL
REPORTS 422 (2004) ........................................................................................ 5, 17
Wendy D. Manning and Kathleen A. Lamb, Adolescent Well-Being in
Cohabiting, Married, and Single-Parent Families 65 JOURNAL OF
MARRIAGE AND FAMILY 876 (2003) ....................................................................... 3
William J. Doherty et al., Why Marriage Matters: Twenty-One Conclusions
from the Social Sciences 8-9 (1
st
edition, Institute for American Values
2002). ...................................................................................................................... 2
WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD: TEN
PRINCIPLES (2008) ................................................................................................ 11

SER 661

1
Interest of the Amicus and Consent to File
1

The members of the American College of Pediatricians (the College)
devote their professional lives to promoting the health and wellbeing of children.
As a medical association, the College has an interest in the broad spectrum of
factors that impact the physical, mental and social development of the young
patients in their care. This interest extends to family structure and environment,
which drives many of the outcomes for pediatric patients across a variety of key
developmental categories.
The collective membership of the College has observed firsthand the effect
of varied and changing family structures on the wellbeing of pediatric patients, and
it is also familiar with the significant academic analysis and sociological data that
augment understanding of these issues. The College submits this brief to present to
the Court its professional perspective concerning the effect of various parenting
models and family structures on the development and wellbeing of the children
under the care of Americas pediatricians.

1
This brief is submitted pursuant to Rule 29(a) of the Federal Rules of Appellate
Procedure with the consent of all parties. No partys counsel authored the brief in
whole or in part; no party or partys counsel contributed money that was intended
to fund preparing or submitting the brief; and no person other than the amicus
curiae, its members, or its counsel, contributed money that was intended to fund
preparing or submitting the brief.
SER 662

2
ARGUMENT
When Congress enacted the Defense of Marriage Act it retained, for
purposes of federal law, a definition of marriage that has prevailed for millennia of
human history. As a group of family scholars have noted:
Marriage exists in virtually every known human society. . . . At least
since the beginning of recorded history, in all the flourishing varieties
of human cultures documented by anthropologists, marriage has been
a universal human institution. As a virtually universal human idea,
marriage is about regulating the reproduction of children, families,
and society . . . . Marriage across societies is a publicly acknowledged
and supported sexual union which creates kinship obligations and
sharing of resources between men, women, and the children that their
sexual union may produce.
2

In declining to have federal programs reflect novel definitions of marriage in
states, Congress acted to preserve the goods marriage has provided through time
and across cultures. The wisdom of the understanding of marriage is borne out by a
large body of social science research which suggests that family structure matters
for children.
3

2
William J. Doherty et al., Why Marriage Matters: Twenty-One Conclusions from
the Social Sciences 8-9 (1
st
edition, Institute for American Values 2002).
3
Kristin Anderson Moore, Susan M. Jekielek, and Carol Emig, Marriage from a
Child's Perspective: How Does Family Structure Affect Children, and What Can
We Do about It? CHILD TRENDS RESEARCH BRIEF (June 2002). For support of this
proposition, see Lorraine Blackman et al., The Consequences of Marriage for
African-Americans: A Comprehensive Literature Review (Institute for American
Values, 2005); W. Bradford Wilcox et al., Why Marriage Matters: 26 Conclusions
from the Social Sciences (2d edition, Institute for American Values 2005); Paul R.
Amato, Parental Absence During Childhood and Depression In Later Life 32
SOCIOLOGICAL QUARTERLY 543, 547 (1991); SARA MCLANAHAN AND GARY
SER 663

3
In dismissing the crucial policy interests advanced by DOMA, however, the
court below relied on affidavits from an expert put forward by the Plaintiffs that
the court said demonstrated that same-sex parents are equally capable at parenting
as opposite-sex parents, that parents genders are irrelevant to childrens
developmental outcomes, and that children raised by same-sex parents are as
likely to be emotionally healthy, and educationally and socially successful as those
raised by opposite-sex parents. Order at 26.
The court below was mistaken to so cavalierly discount the child-related
interests served by marriage that amply justify the definition of marriage retained
by DOMA for purposes of federal law. Social science evidence purporting to
establish equivalence in child outcomes for children raised by a married mother
and father compared to children raised by same-sex couples is severely limited
and, in fact, may disclose significant differences in these outcomes. There is also
important evidence suggesting children derive substantial benefits from the unique
contributions of both men and women, mothers and fathers, as opposed to just any
two adults. Finally, while social science data can be very helpful as a resource in

SANDEFUR, GROWING UP WITH A SINGLE PARENT: WHAT HURTS, WHAT HELPS 1-
78, 134-55 (1994); Paul R. Amato, The Impact of Family Formation Change on
the Cognitive, Social and Emotional Well-Being of the Next Generation 15 FUTURE
OF CHILDREN 75, 89 (2005); Wendy D. Manning and Kathleen A. Lamb,
Adolescent Well-Being in Cohabiting, Married, and Single-Parent Families 65
JOURNAL OF MARRIAGE AND FAMILY 876, 890 (2003); Michael J. Rosenfeld,
Nontraditional Families and Childhood Progress through School 47 DEMOGRAPHY
755 (2010).
SER 664

4
resolving legal disputes, courts should be very cautious in interpreting and
applying this data especially where, as here, there seems to be no consensus about
the content and implications of the data.
I.
Existing research on child outcomes for children raised by same-sex
couples as compared to married husband-wife couples is significantly limited
and actually suggests differences that do not bode well for children.

The litigation challenging the Defense of Marriage Act has typically relied
on assertions about child outcomes related to family structure. These claims
usually have nothing to do with the questions raised in the case. The child-centered
purpose of marriage does not depend on assertions, which have not been disputed
by any party to this case, that individuals in same-sex couples are incapable of
being good parents or that either men or women are superior to one another as to
parenting capacity. DOMAs challengers imply additionally, however, that
research suggests there are no differences in child outcomes between children
raised by same-sex couples and those raised by married mothers and fathers. This
assertion is mistaken.
First, much of the research on this point is significantly flawed. An
important new study critiques assertions made in an official brief of the American
Psychological Association and demonstrates not one of the 59 studies referenced
in the 2005 APA brief compares a large, random, sample of lesbian or gay parents
and their children with a large, random, representative sample of married parents
SER 665

5
and their children. The available data, which are drawn primarily from small,
convenience samples, are insufficient to support a strong generalizable claim either
way. Such a statement would not be grounded in science. To make a generalizable
claim, representative, large-sample studies are neededmany of them.
4
The
article also noted previous research had not assessed multiple concerns of societal
importance, including drug and alcohol abuse, education (truancy), sexual activity,
and criminality.
5
Other research has likewise found that studies purporting to
show no difference between children raised by same-sex couples and those raised
by married mothers and fathers have significant flaws such as insufficient sample
sizes, reliance on volunteer rather than random samples, a lack of longitudinal
research, inappropriate comparisons (i.e. comparing children raised by same-sex
couples to children raised by divorced mothers) and other problems.
6
One very
relevant problem is the near total absence of research on children raised by two

4
Loren D. Marks, Same-Sex Parenting and Childrens Outcomes: A Closer
Examination of the American Psychological Associations Brief on Lesbian and
Gay Parenting 41 SOCIAL SCIENCE RESEARCH 735, 748 (2012).
5
Id at 744.
6
The most complete critique of the research was conducted by Dr. Steven Nock of
the University of Virginia. Affidavit of Professor Steven Lowell Nock, Halpern v.
Attorney General of Canada, Case No. 684/00 (Ontario Sup. Ct. Justice 2001). See
also Norval D. Glenn, The Struggle for Same Sex Marriage 41 SOCIETY 25, 26-
27(2004); Walter R. Schumm, What Was Really Learned from Tasker &
Golombok's (1995) Study of Lesbian & Single Parent Mothers? 94
PSYCHOLOGICAL REPORTS 422, 423 (2004); ROBERT LERNER & ALTHEA K. NAGAI,
NO BASIS: WHAT THE STUDIES DON'T TELL US ABOUT SAME-SEX PARENTING
(Washington DC: Marriage Law Project, 2001).
SER 666

6
men rather than two women.
7
The Eleventh Circuit has addressed this seriously
flawed body of research noting significant flaws in the studies methodologies
and conclusions, such as the use of small, self-selected samples; reliance on self-
report instruments; politically driven hypotheses; and the use of unrepresentative
study populations consisting of disproportionately affluent, educated parents.
8

The court below did not have at its disposal the most current research on
child outcomes for children raised by same-sex couples. A brand new study in the
peer-reviewed journal Social Science Research uses a large random national
sample to assess these outcomes.
9
The study is based on interviews with 3,000
respondents, 175 of whom were raised by a mother who had been in a same-sex
relationship and 73 by a father who had been in a same-sex relationship. It looked
at social behaviors, health behaviors, and relationships comparing child
outcomes (as reported by the adult children rather than by those who raised them)
among various groups including married biological parents (labeled as IBF for
intact biological family) and parents who had been in same-sex relationships

7
Fiona Tasker, Lesbian Mothers, Gay Gathers and Their Children; A Review 26
DEVELOPMENTAL AND BEHAVIORAL PEDIATRICS 224, 225 (2005) ([s]ystematic
research has so far not considered developmental outcomes for children brought up
from birth by single gay men or gay male couples (planned gay father families),
possibly because of the difficulty of locating an adequate sample.).
8
Lofton v. Secretary of the Department of Children and Family Services, 358 F.3d
804, 825 (11th Cir. 2004).
9
Mark Regnerus, How Different are the Adult Children of Parents who have
Same-Sex Relationships? Findings from the New Family Structures Study 41
SOCIAL SCIENCE RESEARCH 752 (2012).
SER 667

7
(labeled LM for lesbian mothers and GF for gay fathers).
10
On the forty outcomes
measured, there were significant differences between those in the IBF and LM
groups on twenty of those measures (the smaller sample size for fathers did not
allow for as many findings of significance).
11
Some of the statistically significant
differences where children who reported their mothers having been in a same-sex
relationship fared worse than children raised by married biological parents
included: cohabitation (9% of the IBF and 24% of the LM group), receiving
welfare while growing up (17% of the IBF and 69% of the LM group), currently
receiving public assistance (10% of the IBF and 38% of the LM group), current
employment (49% of the IBF and 26% of the LM group), current unemployment
(8% of the IBF and 28% of the LM group), having an affair while married or
cohabiting (13% of the IBF and 40% of the LM group), having been touched
sexually by a parent or other adult (2% of the IBF and 23% of the LM group), and
ever having been forced to have sex against their will (8% of the IBF and 31% of
the LM group).
12
In addition, the children who reported their mothers having been
in a same-sex relationship were significantly less likely to identify as heterosexual
(90% of the IBF and 61% of the LM group).
13
Other measures where the children
whose mothers had been in same-sex relationships had significantly greater

10
Id. at 755-756.
11
Id. at 764.
12
Id. at 761 table 2.
13
Id.
SER 668

8
experience than the children of married biological parents include marijuana use,
smoking, being arrested, and numbers of sex partners.
14

A less ambitious new longitudinal study found that compared to children
raised by married, biological parent couples, children raised by same-sex couples
had poorer math assessment scores though this effect was only significant when
the instability of the childrens lives related to household structure were factored
out (the existence of such instability is significant in itself).
15

Though the court below was likely not aware of this study, the research that
existed previously already contained suggestions of important differences, even
though these studies have been relied on as support for the proposition that such
differences do not exist, as the court below claimed. One such study found that
children raised by same-sex couples were more likely to become drunk, be
involved in binge drinking, use marijuana, engage in sexual behavior while
intoxicated and be involved in delinquent behavior than children raised by
opposite-sex couples.
16
A very recent study also found a higher incidence of
alcohol and marijuana use for children of same-sex couples and higher use of

14
Id. at 762 table 4.
15
Daniel Potter, Same-Sex Parent Families and Childrens Academic Achievement
74 JOURNAL OF MARRIAGE & FAMILY 556 (2012).
16
Jennifer L. Wainwright, Delinquency, Victimization, and Substance Use Among
Adolescents with Fame Same Sex Parents 20 JOURNAL OF FAMILY PSYCHOLOGY
526, 528 table 1 (2006).
SER 669

9
hallucinogen use for boys from these households.
17
A 2010 study found adolescent
girls raised by female couples were significantly more likely to have had sexual
contact with other girls, more likely to have used emergency contraception, and
less likely to have used other forms of contraception than girls raised in other
kinds of households.
18
An article reporting a British study found a significant
difference . . . with a greater proportion of fathers than co-mothers showing raised
levels of emotional involvement with their children.
19
A 1997 study found:
[c]hildren in father-absent families perceived themselves to be less cognitively
competent and less physically competent than children in father-present
families.
20
A book published the same year found women with lesbian mothers
were more likely to be involved in promiscuous sex before marriage.
21
One of the
few studies that focused on gay fathers (not necessarily in couples) found their
adult daughters were significantly less comfortable with closeness and intimacy,

17
Naomi Goldberg, et al., Substance Use by Adolescents of the USA National
Longitudinal Lesbian Family Study 16 JOURNAL OF HEALTH PSYCHOLOGY 1, 5
(2011).
18
Nanette Gartrell, et al., Adolescents of the U.S. National Longitudinal Lesbian
Family Study: Sexual Orientation, Sexual Behavior, and Sexual Risk Exposure 40
ARCHIVES OF SEXUAL BEHAVIOR 1199, 1202-1204 (2011).
19
Susan Golombok, et al., Children With Lesbian Parents: A Community Study 39
DEVELOPMENTAL PSYCHOLOGY 20, 26 (2003).
20
Susan Golombok, et. al, Children Raised in Fatherless Families from Infancy:
Family Relationships and the Socioemotional Development of Children of Lesbian
and Single Heterosexual Mothers 38 JOURNAL OF CHILD PSYCHOLOGY &
PSYCHIATRY 783, 788 (1997).
21
FIONA TASKER & SUSAN GOLOMBOK, GROWING UP IN A LESBIAN FAMILY:
EFFECTS ON CHILD DEVELOPMENT 133 (Gulliford Press 1997).
SER 670

10
less able to trust and depend on others, and experienced more anxiety in
relationships than women with heterosexual fathers.
22

This kind of research does not provide the answers to policy questions such
as whether to recognize same-sex unions in the law and what form such
recognition might take. It does suggest, however, that Congress decision not to
jettison the definition of marriage that applied in federal law for the entire
preceding history of the nation is wisely cautious and advances state interests in
child well-being the court below did not adequately consider.
II.
Children benefit from the unique parenting contributions of both men and
women.

Justice William Brennan argued the optimal situation for the child is to
have both an involved mother and an involved father.
23
Indeed, the expert relied
on by the court below has written: Both mothers and fathers play crucial and
qualitatively different roles in the socialization of the child.
24
These conclusions
are in line with a large body of social science evidence. A group of family scholars
explains: empirical literature on children suggests that the two sexes bring

22
Theodore Sirota, Adult Attachment Style Dimensions in Women Who Have Gay
or Bisexual Fathers 23 ARCHIVES OF PSYCHIATRIC NURSING 289 (2009).
23
Bowen v. Gilliard, 483 U.S. 587, 614 (1987) (Brennan, J. dissenting).
24
Michael E. Lamb, Fathers: Forgotten Contributors to Child Development 18
HUMAN DEVELOPMENT 245, 246 (1975).
SER 671

11
different talents to the parenting enterprise.
25
In his testimony in the Proposition 8
trial, plaintiffs expert Michael Lamb admitted he had previously stated men and
women are not completely interchangeable with respect to skills and abilities and
that data suggests that the differences between maternal and paternal behavior are
more strongly related to either the parents biological gender or sex roles, than to
either their degree of involvement in infant care or their attitudes regarding the
desirability of paternal involvement in infant care.
26

A number of studies outline unique contributions mothers make to their
children. For instance, a mothers responsiveness to her child promotes brain
development, including the ability to interact, in the child.
27
Mothers provide
crucial direction to fathers on childcare tasks.
28
Mothers are typically closer to their

25
WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD: TEN PRINCIPLES 18
(2008).
26
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), trial transcript
at 1064 & 1068.
27
See C.A. Nelson and M. Bosquet, Neurobiology of Fetal and Infant
Development: Implications for Infant Mental Health, in HANDBOOK OF INFANT
MENTAL HEALTH 37 (2d ed., C.H. Zeanah Jr., editor, 2000); M. DeWolff and M.
van Izjendoorn, Sensitivity and Attachment: A Meta-Analysis on Parental
Antecedents of Infant Attachment 68 CHILD DEVELOPMENT 571 (1997); M. Main
and J. Solomon, Discovery of an Insecure-Disorganized Disoriented Attachment
Pattern, in AFFECTIVE DEVELOPMENT IN INFANCY 95 (T.B. Brazelton and M.W.
Yogman eds., 1986).
28
Sandra L. Hofferth et al., The Demography of Fathers: What Fathers Do, in
HANDBOOK OF FATHER INVOLVEMENT: MULTIDISCIPLINARY PERSPECTIVES 81
(Catherine Tamis-Lamonda and Natasha Cabrera eds., 2002); SCOTT COLTRANE,
FAMILY MAN 54 (1996).
SER 672

12
children emotionally and have more and more open communication than fathers.
29

Women play with their children differently than do men, emphasizing interaction,
predictability and joint problem-solving.
30
Mothers impose limits and discipline
more frequently, but with greater flexibility, than do fathers.
31
The role of mothers
in helping children develop language and communication skills is usually greater
than that of fathers.
32
Mothers help their children develop empathy for others by
helping them understand the emotions of others as well as their own.
33
Mothers
provide an important role in getting children to connect to extended family and
their peers.
34

Eminent sociologist James Q. Wilson has said: The weight of scientific
evidence seems clearly to support the view that fathers matter.
35
To take one
example, plaintiff expert Dr. Lamb explained: boys growing up without fathers

29
ROSS D. PARKE, FATHERHOOD 7 (1996).
30
ELEANOR MACOBY, THE TWO SEXES 266-67 (1998); PARKE, FATHERHOOD at 5;
KYLE D. PRUETT & MARSHA KLINE PRUETT, PARTNERSHIP PARENTING: HOW MEN
AND WOMEN PARENT DIFFERENTLY WHY IT HELPS YOUR KIDS AND CAN
STRENGTHEN YOUR MARRIAGE 18-19 (2009).
31
MACOBY, THE TWO SEXES at 273.
32
PARKE, FATHERHOOD at 6.
33
Suzanne A. Denham et al., Prediction of Externalizing Behavior Problems From
Early to Middle Childhood: The Role of Parental Socialization and Emotion
Expression, in DEVELOPMENT AND PSYCHOPATHOLOGY 23 (2000); MACOBY, THE
TWO SEXES at 272.
34
Paul Amato, More Than Money? Mens Contributions to Their Childrens
Lives? in MEN IN FAMILIES, WHEN DO THEY GET INVOLVED? WHAT DIFFERENCE
DOES IT MAKE? 267 (Alan Booth and Ann C. Crouter, eds. 1998).
35
JAMES Q. WILSON, THE MARRIAGE PROBLEM 169 (2002).
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13
seemed to have problems in the areas of sex-role and gender-identity
development, school performance, psychosocial adjustment, and perhaps in the
control of aggression.
36
Fathers play with children emphasizes spontaneity and
limits simultaneously.
37
They are more likely to allow children to explore and take
risks by supervising rather than intervening in childrens play.
38
Fathers are more
likely to encourage childrens exploration of novelty.
39
Fathers help children
develop their independence from the family by giving adolescents a sense that the
child can be relied on.
40
When fathers provide discipline it is less frequent but
more predictable.
41
Children also seem more likely to comply with fathers

36
Michael W. Lamb, Fathers and Child Development: An Introductory Overview
and Guide in THE ROLE OF THE FATHER IN CHILD DEVELOPMENT 1, 10 (Michael E.
Lamb, editor, third edition 1997).
37
DAVID POPENOE, LIFE WITHOUT FATHER 144 (1996); see also Linda Carroll,
Dads Empower Kids to Take Chances, MSNBC, June 18, 2010 (available at
http://www.msnbc.msn.com/id/37741738 ).
38
Daniel Paquette & Mark Bigras, The Risky Situation: A Procedure for Assessing
the Father-Child Activation Relationship, 180 EARLY CHILDHOOD DEVELOPMENT
& CARE 33 (2010).
39
PARKE, FATHERHOOD at 6.
40
Shmuel Shulman & Moshe M. Klein, Distinctive Role of the Father in
Adolescent Separation - Individuation 1993 NEW DIRECTIONS FOR CHILD &
ADOLESCENT DEVELOPMENT 41, 53 (1993).
41
Thomas G. Powers et al., Compliance and Self-Assertion: Young Childrens
Responses to Mothers Versus Fathers, 30 DEVELOPMENTAL PSYCHOLOGY 980
(1994).
SER 674

14
requests.
42
Fathers seem to have a greater impact on mothers on the delinquency
and sexual behavior of children.
43

Surely, if children benefit from a relationship with a mother and father,
Congress is acting rationally in treating the union of a man and a woman
differently from other types of relationships.
III.
Courts should act with extreme caution in making social and constitutional
policy when relying on provisional social science data.

When courts are asked to resolve contentious disputes involving important
social and policy considerations, they should of course proceed cautiously. This
caution is, if possible, even more necessary when relying upon social science
research.
As the U.S. Supreme Court has explained, arguably, there are no certainties
in science.
44
As the Court further noted, the conclusions of science are subject to

42
MACOBY, THE TWO SEXES at 274-275.
43
Paul R. Amato and Fernando Rivera, Paternal Involvement and Childrens
Behavior Problems 61 JOURNAL OF MARRIAGE & FAMILY 375 (1999); Mark D.
Regnerus and Laura B. Luchies, The Parent-Child Relationship and Opportunities
for Adolescents First Sex 27 JOURNAL OF FAMILY ISSUES 159 (2006); Bruce J.
Ellis, Does Father Absence Place Daughters at Special Risk for Early Sexual
Activity and Teenage Pregnancy? 74 CHILD DEVELOPMENT 801 (2003); Bruce J.
Ellis, Quality of Early Family Relationships and Individual Differences in the
Timing of Pubertal Maturation in Girls: A Longitudinal Test of an Evolutionary
Model 77 JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 387 (1999).
44
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993).
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15
perpetual revision while courts must resolve disputes finally and quickly.
45
This
creates the problem of unavailable data because science is under few or no time
constraints and so may not have information that would aid a court in a matter
that needs immediate resolution or may have information that will be significantly
altered or amended or given proper context in the future.
46
Thus, for instance, the
court below quoted one expert as saying there existed no empirical support for the
notion that the presence of both male and female role models in the home promotes
childrens adjustment or well-being. Order at 26. As discussed above, that was
probably not true at the time and has now been directly challenged by a very
significant study with results suggesting the contrary. At the very least, we can
confidently say there exists no informed consensus as to the child outcomes of
same-sex marriages.
It is also beyond question that science is affected by political and cultural
trends. Science does not operate in a vacuum; it is subject to social forces, both
within and without the scientific world. . . . The relationships both within and
beyond the scientific community exert influence on the creation of scientific

45
Id. at 597.
46
David L. Faigman, Legal Alchemy: The Use and Misuse of Science in the Law 2
YALE SYMPOSIUM ON LAW & TECHNOLOGY 3 (2000); M. Neil Browne & Ronda R.
Harrison-Spoerl, Putting Expert Testimony In Its Epistemological Place: What
Predictions of Dangerousness in Courts Can Teach Us 91 MARQUETTE LAW
REVIEW 1119, 1128 (2008).
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16
knowledge.
47
Edward Phillips of the University of Greenwich similarly notes that
scientific knowledge, like other forms of knowledge, does not exist in a political
or institutional vacuum so an expert may well be operating from a theoretical or
intellectual base which involves predetermined conclusions and his or her
conclusions drawn may involve interpretative value judgments.
48
Two of the
more enthusiastic academic supporters of family change including redefining
marriage admit: [T]he political stakes of this body of research are so high that the
ideological family values of scholars play a greater part than usual in how they
design, conduct, and interpret their studies.
49
They note further: [T]oo many
psychologists who are sympathetic to lesbigay parenting seem hesitant to theorize
at all and are apt to downplay the significance of any findings of differences.
50

These kinds of influences are joined by more prosaic matters such as the
interests and inclinations of a researcher, the availability of samples on which to
work,
51
the accessibility of colleagues with similar interests and other matters.

47
Browne & Harrison-Spoerl, at 1160-1161.
48
Edward Phillips, Testing the Truth: The Alliance of Science and Law in
CRIMINAL JUSTICE IN CRISIS 229, 239-240 (Mike McConville & Lee Bridges, eds.,
1994) as quoted in Browne & Harrison-Spoerl, at 1160 note 187.
49
Judith Stacey & Timothy Biblarz, (How) Does the Sexual Orientation of Parents
Matter? 66 AMERICAN SOCIOLOGICAL REVIEW 159, 161 (2001).
50
Id.
51
Thus, for instance, one family scholar has explained:
[O]ne has to be very careful in interpreting research on homosexual
issues and be wary of outcomes when samples are very small and
often nonrandom, so the null hypothesis is not rejected but is used for
SER 677

17
Perhaps most importantly there may be, for whatever reason, a similarity of
opinion on matters within a profession so that advancement and participation might
seem to be threatened (or actually be denied) to those who follow a research
agenda or announce findings contrary to the majority position.
The limitations of scientific evidence are particularly acute in regards to the
social sciences. As the Eighth Circuit has noted: There is some question as to
whether the Daubert analysis should be applied at all to soft sciences such as
psychology, because there are social sciences in which the research, theories and
opinions cannot have the exactness of hard science methodologies.
52

The particular limitations of social science evidence may result from the
more necessarily theoretical presuppositions of the field, since the objects of
studyhuman and social interactions and decisionsare complex, multi-factored
and have idiosyncratic qualities shared by the researcher (making objectivity
difficult). Thus, for instance, expert testimony about the speed of an object might
be reasonably straightforward since the factors involved could be identified and

political purposes as if a meaningful result had been obtained. Such a
result may reflect poor methodology or selective review of the
literature rather than valid science. Policy makers should interpret
research on gays and family life (or any very small subset of any
population) with extreme caution.
Walter Schumm, What was Really Learned from Tasker & Golomboks (1995)
Study of Lesbian & Single Parent Mothers? 94 PSYCHOLOGICAL REPORTS 422, 423
(2004).
52
Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1297 (8
th
Cir. 1997).
SER 678

18
isolated while testimony about the nature or effects of historical trends in family
life will, of necessity, involve a multitude of factors hard to isolate and perhaps
even to know. Social science usually lacks controlled experimentation, which is
what allows science positively to settle certain kinds of debates.
53
Thus, we
should be very skeptical of claims for the effectiveness of new, counterintuitive
programs and policies, and we should be reluctant to trump the trial-and-error
process of social evolution in matters of . . . social policy.
54

Thus, while scientific evidence, including social scientific evidence, will be
useful and helpful, it ought to approached with caution and carefully examined
including for the possibility that it may reflect cultural or political, rather than
empirical, assumptions.
What is disconcerting, however, is that the court below treated this
inherently contingent body of research (as relayed to the court by an expert whose
own view of the matter appears to have changed over time) as a justification for
dismissing the inherited wisdom of millennia about marriage and childrens needs.
This court should not repeat that mistake.
CONCLUSION
For the foregoing reasons, amicus curiae respectfully requests that this

53
Jim Manzi, What Social Science Doesand DoesntKnow CITY JOURNAL
(Summer 2010) at http://city-journal.org/printable.php?id=6330.
54
Id.
SER 679

19
Honorable Court uphold the constitutionality of the Defense of Marriage Act and
reverse the judgment of the district court.
Respectfully submitted,
Vincent P. McCarthy
August 17, 2012
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20
Certificate of Compliance with Rule 32(a)
This brief complies with the type-volume limitations of Fed. R. App. P.
32(a)(7)(B) because it contains 4,654 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and type style requirements of Fed. R. App. P. 32(a)(6) because this brief
has been prepared in a proportionately spaced typeface using Microsoft Word 2007
in 14-point Times New Roman font.
Vincent P. McCarthy
August 17, 2012

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21
Certificate of Service

appellate CM/ECF system on August 17, 2012.
Vincent P. McCarthy
August 17, 2012
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Touchstone, Jan/Feb 2012
http://www.touchstonemag.com/archives/print.php?id=25-01-024-f
Why Fight Same-Sex Marriage? (excerpt)
Is There Really That Much at Stake?
by Douglas Farrow
Why fight same-sex marriage?
Moreover, it is perfectly plain to anyone following the fight closely that same-sex marriage is
merely a proximate goal -- something to be abandoned as quickly as it was invented, when its
work is done. Can it really be worth fighting then?
The answer is yes, for reasons that become clear when we have taken account of the work it is
meant to do. And what is that work? Positively, to normalize homosexual relationships.
Negatively, to de-normalize heterosexual monogamy. (Those who claim that they want
homosexual relationships to be more like monogamous heterosexual relationships may or may
not be sincere, but they represent no significant constituency.)
Now, some think that this larger project can be left to market forces. But others think that
heterosexual monogamy, as the source of widespread discrimination against alternative
sexualities and lifestyles, must be repudiated as a social standard. Same-sex marriage is the tool
of choice for doing that. By redefining marriage as a union of two (or more) persons, rather than
as the union of one man and one woman, the offending norm is removed from the body politic
with a single incision. Afterwards, a wider assault on homophobia and heterosexism can follow.
Double-Edged Knife
Tools need to be crafted, of course, and social debates carefully framed. That has already been
done with remarkable skill. The knife that is poised to remove the traditional definition of
marriage from America has been honed at both edges.
The one edge is shaped by an appeal to our best instincts -- the love of liberty, and of liberty in
love. This is the emotive edge, flashing with winsome pictures of same-sex families and
disturbing anecdotes about marginalization. It also plays on feelings of repression and guilt. As
one young woman (quoted in an Associated Press story) put it: They love and they have the
right to love. And we cant tell somebody how to love.
The other edge is the harder, more rational edge, shaped by an appeal to autonomy and equality.
Not content with the anecdotal, it drives home the case for rights -- rights not merely to love as
one sees fit but to equal recognition of that love by the state. Hence also to recognition of the
SER 683
wrong, both morally and constitutionally, of the traditional definition of marriage that privileges
the heterosexual norm.
In America, this knife was first wielded in Massachusetts by the 2003 Goodridge court, which
concluded as follows:
Barred access to the protections, benefits, and obligations of civil marriage, a person who enters
into an intimate, exclusive union with another of the same sex is arbitrarily deprived of
membership in one of our communitys most rewarding and cherished institutions. That
exclusion is incompatible with the constitutional principles of respect for individual autonomy
and equality under law.
Massachusetts later sued the federal government for attempting, through the Defense of Marriage
Act (DOMA), to enshrine in law the status quo ante. The suit claimed that in enacting DOMA
Congress overstepped its authority, undermined states efforts to recognize marriages between
same-sex couples, and codified an animus towards gay and lesbian people. Not wishing to be
implicated in that animus, the White House has declined to defend DOMA, the fate of which has
yet to be decided. If DOMA fails, same-sex marriage will succeed in the courts of state after
state, and with it the de jure normalization and denormalization of which we have spoken.
The Bonds of Marriage
Alarmed about all of this, various champions have sprung to the defense of marriage, which they
are now reduced (in a concession I regard as a mistake) to calling traditional or historic
marriage. Over the past decade or so, they have tried to re-frame the debate by highlighting the
abiding contributions of that institution, while avoiding as far as possible the appearance of
animus against homosexuals.
Those contributions are manifold, and a good deal of emphasis has rightly been placed on the
positive social and economic outcomes that marriage continues to produce in contemporary
society. But at the center -- indispensable to the rest -- is the service marriage does to the bond
between a child and its natural parents. Sex makes babies, and babies need a mother and a
father, as Maggie Gallagher (an indefatigable champion) likes to say. Marriage is designed to
make it more likely that children will have and keep their parents.
Same-sex marriage proponents, for their part, are forced to set aside this concern. On their view,
the parent-child bond lies beyond the immediate purview of marriage, as does the particular
sexual act that produces children. Marriage is simply the formalization of an intimate
relationship between adults. If those adults happen to produce or obtain children, well, that is
another matter. Moreover, their bond with those children does not require any particular family
structure to support it; good outcomes can be had from diverse family structures.
The debate about what constitutes a family, and about outcomes for children, is an increasingly
lively one. It is largely driven, however, by the normalization/de-normalization agenda that
underlies same-sex marriage. The irony of this can hardly be missed. For same-sex marriage, as
courts in North America have made clear, is predicated on a denial of procreation or child-
SER 684
rearing as a definitive interest. Marriage is about adult bonding, and adult bonding is all there is
to marriage.
The champions of marriage respond that they are very much in favor of adult bonding, which the
institution is indeed meant to serve. That bonding, though good in itself, is for a purpose beyond
itself, however. It is for a purpose of public as well as private interest, the purpose of procreation
and child-rearing. It is not necessary, they point out, to hold that procreation constitutes the only
good of marriage in order to recognize that procreation is an essential good of marriage. Nor, for
that matter, is it necessary to hold that a childless marriage is not a marriage, at least where the
childlessness is not deliberate -- a matter rightly shielded from public scrutiny. But they insist
that to exclude procreation as an essential or defining good makes nonsense of marriage.
Divine & Human Rights
Surely that is correct. The third-century Roman jurist, Modestinus, captured the common
understanding of marriage with the following definition: Marriage is the union of a man and a
woman, a consortium for the whole of life involving the communication of divine and human
rights. This union and these rights exist, not merely for their own sake, but also and especially
for the sake of the inter-generational concerns of progeny and property; with a view, that is, to
the conditions necessary for the founding and flourishing of the family. The rights involved are
divine as well as human because marriage is generative, and hence pre- as well as pro-political;
because what is founded through marriage is, in the twentieth-century language of the Universal
Declaration of Human Rights, the natural and fundamental group unit of society.
The same elements that found expression in Modestinus perdured and prospered in the
Augustinian understanding of marriage as an institution entailing, not one, but three interwoven
goods: proles, fides, et sacramentum -- procreation or fruitfulness, loyalty or faithfulness, and
bonding or sacred union. That societies shaped by this understanding took the unusual step of
making marriage monogamous testifies to the seriousness with which each of these goods was
regarded, precisely in its service to the others. It was by developing them in their mutuality,
moreover, that heterosexual monogamy (to use the language of its detractors) created the
conditions for the new and deeper respect for women and for children that until recently has
characterized the West.
But marriage for some time has been under feminist attack for its putative institutionalization, in
the name of divine rights, of oppressive patriarchal tendencies. This attack coordinated, as it
now is, with a Rawlsian assault on religious or comprehensive doctrines in the public sphere --
has helped create a very different set of conditions, the conditions necessary for the advent of
same-sex marriage. And same-sex marriage, by eliminating the first good (proles), has begun to
unravel the whole fabric of marriage, setting up something else in its place: an institution not
intrinsically connected to the family, or at all events not connected to the natural family. The
divine and human rights belonging to marriage are thus beginning to disappear, as I want now to
make clear.
A Society Very Small
SER 685
Everyone has the right to marry and to found a family, says the Universal Declaration, and the
family thus founded is entitled to protection by society and the State.
Parenthetically, we should observe that everyone really does mean everyone, though of course
not everyone wills to marry or is able to do so. It is ludicrous, then, to propose that same-sex
marriage expands the pool of those who have a right to marry. It does no such thing, since
everyone already has that right. As I pointed out some time ago in Divorcing Marriage, only if
marriage is redefined as a union of persons, rather than the union of a man and a woman, is it
possible to argue that homosexuals have been barred access to marriagewhich evokes the
question, why change the definition?
It does no such thing, moreover, since what same-sex marriage offers, which has naught to do
with founding a family, is indeed something other than marriage, as Girgis, George, and
Anderson ably showed in their article, What Is Marriage? in the Harvard Journal of Law and
Public Policy (2010). Same-sex marriage is simply a variant of what Elizabeth Brake calls adult
care networks, which can be made available in virtually any size or shape (Minimal Marriage,
Ethics, 2010).
Pace Brake, we should observe also that when a family of some description is founded by a
same-sex couple, it is always founded by violating the natural parent-child bond that marriage is
intended to nurture and protect. It deprives the child, whether in the same way that divorce does
or in some more innovative technological way, of its prima facie right to its own father and
mother. But we should notice something else as well, and not merely parenthetically --
something too little noticed either by the detractors or by the champions of marriage. Same-sex
marriage violates the natural parent-child bond in every family, and the right of the family to
protection by society and the state.
How so?
In Rerum Novarum Pope Leo XIII rightly described the family as a society very small . . . but
none the less a true society, and one older than any State, with rights and duties peculiar to
itself which are quite independent of the State. This society, founded more immediately in
nature, is what the Universal Declaration has in mind when it speaks in article 16 of the family.
The familys status as natural -- that controversial adjective is deployed only in this one
specific article -- allows it a certain priority over civil society and the state. The latter share an
obligation to protect the family, but the family is not at their disposal.
Same-sex marriage dispenses with all of that, however. By excising sexual difference, with its
generative power, it deprives itself of any direct connection to nature. The unit it creates rests on
human choice, as does that created by marriage. But whether monogamous, polygamous, or
polyamorous, it is a closed unit that reduces to human choice, rather than engaging choice with
nature; and its lack of a generative dimension means that it cannot be construed as a fundamental
building block.
Institutionally, then, it is nothing more than a legal construct. Its roots run no deeper than
positive law. It therefore cannot present itself to the state as the bearer of independent rights and
SER 686
responsibilities, as older or more basic than the state itself. Indeed, it is a creature of the state,
generated by the states assumption of the power of invention or re-definition. Which changes
everything.
A Tool of the State
Six years ago, when same-sex marriage became law in Canada, the new legislation quietly
acknowledged this. In its consequential amendments section, Bill C-38 struck out the language
of natural parent, blood relationship, etc., from all Canadian laws. Wherever they were
found, these expressions were replaced with legal parent, legal relationship, and so forth.
That was strictly necessary. Marriage was now a legal fiction, a tool of the state, not a natural
and pre-political institution recognized and in certain respects (age, consanguinity, consent,
exclusivity) regulated by the state. And the states goal, as directed by its courts, was to assure
absolute equality for same-sex couples. The problem? Same-sex couples could be parents, but
not parents of common children. Granting them adoption rights could not fully address the
difference. Where natural equality was impossible, however, formal or legal equality was
required. To achieve it, heterosexual marriages had to be conformed in law to homosexual
marriages. The latter produced non-reproductive units, constituted not by nature but by law; the
former had therefore to be put on the same footing, and were.
The aim of such legislation, as F. C. DeCoste has observed in Courting Leviathan (Alberta
Law Review, 2005),
is to de-naturalize the family by rendering familial relationships, in their entirety, expressions of
law. But relationships of that sort -- bled as they are of the stuff of social tradition and experience
-- are no longer family relationships at all. They are rather policy relationships, defined and
imposed by the state.
Here we have what is perhaps the most pressing reason why same-sex marriage should be
fought, and fought vigorously. It is a reason that neither the proponents nor the opponents of
same-sex marriage have properly debated or thought through. In attacking heterosexual
monogamy, same-sex marriage does away with the very institution -- the only institution we
have -- that exists precisely in order to support the natural family and to affirm its independence
from the state. In doing so, it effectively makes every citizen a ward of the state, by turning his or
her most fundamental human connections into legal constructs at the states gift and disposal.
In Nation of Bastards I have tried to provide a larger account of this, and to show how it leaves
the parent-child relation open to increasing intervention by the state. The current cover for that
intervention is the notion of childrens rights -- meaning, far too often, the right of the child to
whatever it is that the state, acting on behalf of adults other than its parents, wants it to have: a
good education in state ideology, for example, which these days includes diversity training in
alternative family structures.
That should surprise no one, for if marriage is not procreative, it is not educative either. Where is
the educative authority to be transferred, if not to the state, whose pater familias power increases
SER 687
as the rights and freedoms of the natural family diminish? And what will the state do with its
newfound power, if not use it to undermine further the sphere of the family, and the sphere of the
church or religious community as well -- the two spheres where divine and human rights
independent of the state are located?
Accelerated Unraveling
I spoke of an unraveling. Those who point to places like Canada as counter-evidence -- gleefully
observing, in their own preferred metaphor, that the sky has not yet fallen in jurisdictions with
same-sex marriage -- either take others for fools or make fools of themselves. With an institution
as basic as marriage, one must think in terms of centuries, not mere months or years.
There are, however, signs of a certain acceleration. It took some two hundred years for J eremy
Benthams essay on pederasty, which first proposed that objections to homosexual acts were
rooted only in prejudice, to find political expression in the demand for same-sex marriage. (Is
it not Benthams voice that we hear in the charge that DOMA codifies an animus towards gays
and lesbians?) It has not taken long at all for activists in this tradition, aided by a development
we will touch on later, to produce the still more radical Yogyakarta agenda, which they are
presently trying to entrench at the United Nations and impose on states worldwide.
The Yogyakarta Principles on the Application of International Human Rights Law in Relation to
Sexual Orientation and Gender Identity was crafted in 2006 as a master plan for the next phase
of the war on heterosexual monogamy. The document dispenses, as does same-sex marriage
legislation, with the binary logic of male and female that has hitherto governed human society. It
presupposes instead the very different binary of homosexual and heterosexual orientation -- a
binary that can more easily be cracked and broken down into a kaleidoscope of gender identities.
It then reads into a long list of human rights, including the right to found a family and the right to
education, a warrant, or rather a demand, for the protection and promotion of the interests of
people of all sexual orientations and gender identities (emphasis added).
What this means in practice is an all-out assault, in every sector of society, on heterosexism or
heteronormativity; that is, on anything that seems to privilege the male-female binary or the
nuclear family. Here in Quebec there is even a government white paper mapping out the strategy
for la lutte contre lhomophobie et lheterosexisme. Same-sex marriage, it says, served to
consecrate the legal equality of same- and opposite-sex couples; it is time now to press on to
full social equality by eradicating all forms of heterosexist bias. The commandments imperiously
delivered to the nations at Yogyakarta, by a self-declared panel of experts, thus find local
expression in a policy replete with warnings about systemic investigations of infractions and
rigorous monitoring and assessment mechanisms.
There is, then, a further vital reason why same-sex marriage must be vigorously contested,
namely, that no peace is to be had by capitulation. Like it or not, the great struggle is under way.
Marriage, if you please, is the Sudetenland, and its concession is the precursor to a cultural
Blitzkrieg.
.
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Douglas Farrow is Professor of Christian Thought at McGill University in Montreal. His most
recent book is Ascension Theology (T&T Clark, 2011).

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Laumann E O, Gagnon J H, Michael R T, Michaels S 1994 The
Social Organization of Sexuality. Sexual Practices in the United
States. University of Chicago Press, Chicago
Matarazzo J D, Weiss S M, Herd J A, Miller N E, Weiss S M
(eds.) 1984 Behaioral Health: A Handbook of Health En-
hancement and Disease Preention. Wiley, New York
McConaghy N (ed.) 1993 Sexual Behaior. Problems and
Management. Plenum, New York
Oskamp S, Thompson S C (eds.) 1996 Understanding and
Preenting HIV Risk Behaior. Safer Sex and Drug Use. Sage,
Thousand Oaks, CA
Robert Koch-Institut 1999 AIDS\HIV Halbjahresbericht I\99.
Bericht des AIDS-Zentrums im Robert Koch-Institut uWber
aktuelle epidemiologische Daten (AIDS\HIV semiannual re-
port I\99. Report by the AIDS Center at the Robert Koch-
Institute on Current Epidemiological Data). Berlin
Sheeran P, AbrahamC, Orbell S 1999 Psychosocial correlates of
heterosexual condom use: A meta-analysis. Psychology Bul-
letin 125: 90132
Yates J F 1992 Risk-taking Behaior. Wiley, Chichester, UK
J. Bengel
Sexuality and Gender
The meaning of the terms sexuality and gender, and
the ways that writers have theorized the relationship
between the two, have changed considerably over the
last 40 years. The term sexuality has various con-
notations. It can refer to forms of behavior, it may
include ideas about pleasure and desire, and it is also
a termthat is used to refer to a persons sense of sexual
being, a central aspect of ones identity, as well as
certain kinds of relationships. The concept of gender
has also been understood in relation to varying
criterion. Prior to the 1960s, it was a termthat referred
primarily to what is coded in language as masculine or
feminine. The meaning of the term gender has subse-
quently been extended to refer to personality traits and
behaviors that are specically associated either with
women or men; to any social construction having to
do with the male\female distinction, including those
which demarcate female bodies from male bodies; to
gender being thought of as the existence of materially
existing social groups men and women that are the
product of unequal relationships. In this latter sense,
gender as a socially meaningful category is dependant
on a hierarchy already existing in any given society,
where one class of people (men) have systematic and
institutionalized power and privilege over another
class of people (women) (Delphy 1993). The term
patriarchy or, more recently, the phrase patriarchal
gender regimes, is used as a way of conceptualizing
the oppression of women which results.
More recently, the notion of gender as social
practice has emerged and is associated with the work
of Judith Butler (1990), who argues that gender is
performatively enacted through a continual citation
and reiteration of social norms. Butler oers a similar
analysis of sexuality, claiming that far frombeing xed
and naturally occurring, (hetero) sexuality is un-
stable, dependant on ongoing, continuous, and
repeated performances by individuals doing hetero-
sexuality, which produce the illusion of stability.
There is no real or natural sexuality to be copied or
imitated: heterosexuality is itself continually in the
process of being reproduced.
Such ideas are part of the establishment of a new
canon of work on sexuality and gender that has
emerged since the 1960s. This newer approach diers
radically from the older tradition put forward by
biologists, medical researchers, and sexologists, which
developed through the late nineteenth century and was
profoundly inuential during the rst half of the
twentieth century. The traditional approach to under-
standing sexuality and gender has been primarily
concerned with establishing natural or biological
explanations for human behavior. Such analyses are
generally referred to as essentialist. More recent
approaches, although not necessarily denying the role
of biological factors, have emphasized the importance
of social and cultural factors; what is now commonly
known as the social constructionist approach.
The sociological study of sexuality emerged in the
1960s and 1970s and was informed by a number of
theoretical approaches that were signicant at the
time; notably symbolic interactionism, labeling theory
and deviancy theory, and feminism. The work of
writers such as John Gagnon and William Simon
(1967, 1973) in the US, and Mary McIntosh (1968)
and Kenneth Plummer (1975) in the UK, was par-
ticularly important in establishing a dierent focus for
thinking about sexuality. A primary concern of such
works was to highlight how sexuality is social rather
than natural behavior and, as a consequence, a
legitimate subject for sociological enquiry.
Gagnon and Simon developed the notion of sexual
scripts which, they argued, we make use of to help
dene who, what, where, when, how, andmost anti-
essentialist of allwhy we have sex. A script refers to
a set of symbolic constructs which invest actors and
actions, contexts and situations, with sexual mean-
ingor not as the case may be. People behave in
certain ways according to the meanings that are
imputed to things; meanings which are specic to
particular historical and cultural contexts; meanings
that are derived from scripts learnt through sociali-
zation and which are modied through ongoing social
interactions with others. Most radical of all, Gagnon
and Simon claimed that not only is sexual conduct
socially learnt behavior, but the reason for wanting to
engage in sexual activity, what in esssentialist terms is
referred to as sexual drive or instinct, is in fact a
socially learnt goal. Unlike Freud, who claimed the
opposite to be true, Gagnon and Simon suggested that
social motives underlie sexual actions. They saw
gender as central to this and detailed how in con-
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Sexual Risk Behaiors
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temporary Western societies sexual scripts are dif-
ferent for girls and boys, women and men. Here
gender is seen as a central organizing principle in the
interactional process of constructing sexual scripts. In
this sense gender can be seen as constitutive of
sexuality, at the same time as sexuality can be seen as
expressive of gender. Thus, for example, Gagnon and
Simon argue that men frequently express and gratify
their desire to appear masculine through specic
forms of sexual conduct. For example, for young men
in most Western cultures rst sexual intercourse is a
key moment in becoming a real man, whereas this is
not the same for young women. It is rst menstruation
rather thanrst heterosex that marks being constituted
as women.
Another important contribution to the contem-
porary study of sexuality, which has posed similar
challenges to essentialist theories, is the discourse
analysis approach. One example is the work of Michel
Foucault (1979) and his followers, who claim that
sexuality is a modern invention and that by taking
sexuality as their object of study, various discourses,
in particular medicine and psychiatry, have produced
an articial unity of the body and its pleasures: a
compilation of bodily sensations, pleasures, feelings,
experiences, and actions which we call the sexual.
Foucault understands sex not as some essential aspect
of personality governed by natural laws that scientists
may discover, but as an idea specic to certain cultures
and historical periods. Foucault draws attention to the
fact that the history of sexuality is a history of changing
forms of regulation and control over sexuality. What
sexuality is dened as, its importance for society, and
to us as individuals may vary from one historical
period to the next. Furthermore, Foucault argues, as
do interactionists, that sexuality is regulated not only
through prohibition, but is produced through deni-
tion and categorization, in particular through the
creation of sexual categories such as, for example,
heterosexual and homosexual. Foucault argues
that, while both heterosexual and homosexual beha-
vior has existed in all societies, there was no concept of
a person whose sexual identity is homosexual until
relatively recently. Although there is some disagree-
ment among writers as to precisely when the idea of
the homosexual person emerged, it has its origins in
the seventeenth to nineteenth centuries, with the
category lesbian emerging somewhat later than that of
male homosexuality. Such analyses have also high-
lighted howmedical and psychiatric knowledge during
the late nineteenth and early twentieth centuries was a
key factor in the use of the term homosexual to
designate a certain type of person rather than a form
of sexual conduct.
A major criticism of Foucaults work is that
insucient attention is given to examining the re-
lationship between sexuality and gender. Feminist
writers in particular have pointed out how in
Foucaults account of sexuality there is little analysis
of howwomen and men often have dierent discourses
of sexuality. Sexuality is employed as a unitary concept
and, such critics claim, that sexuality is male. Despite
such criticisms, many feminists have utilized Foucaul-
dian perspectives.
A further challenge to essentialist ideas about
sexuality and gender is associated with psychoanalysis,
in particular the reinterpretation of Freud by Jacques
Lacan. For Lacan and his followers sexuality is not a
natural energy that is repressed; it is language rather
than biology that is central to the construction of
desire. Lacanian psychoanalysis has had a signicant
inuence on the development of feminist theories of
sexuality and gender, although some writers have been
critical of Lacans work (Butler 1990).
At the same time as social scientists and historians
were beginning tochallenge the assumptionthat sexual
desires and practices were rooted in nature, more
and more people were beginning to question dominant
ideas about gender roles and sexuality. The late
1960s\early 1970s sawthe emergence of both womens
and gay and lesbian liberation movements in the US
and Europe. An important contribution to analyses of
sexuality and gender at that time was the distinction
feminists, along with some sociologists and psycho-
logists, sought to make between the terms sex and
gender. Sex referred to the biological distinction
between females and males, whereas gender was
developed and used as a contrasting term to sex.
Gender refers to the social meanings and value
attached to being female or male in any given society,
expressed in terms of the concepts femininity and
masculinity, as distinct from that which is thought to
be biologically given (sex). Feminists have used the
sex\gender distinction to argue that although there
may exist certain biological dierences between fe-
males and males, societies superimpose dierent
norms of personality and behavior that produce
women and men as social categories. It is this
reasoning that led Simone de Beauvoir (1964) to
famously remark One is not Born a Woman.
More recently, a new understanding of gender has
emerged. Rather than viewing sex and gender as
distinct entities, sex being the foundation upon which
gender is superimposed, gender has increasingly been
used to refer to any social construction to do with the
female\male binary, including male and female
bodies. The body, it is argued, is not free from social
interpretation, but is itself a socially constructed
phenomenon. It is through understandings of gender
that we interpret and establish meanings for bodily
dierences that are termed sexual dierence
(Nicholson 1994). Sex, in this model, is subsumed
under gender. Without gender we could not read
bodies as dierently sexed; gender provides the cat-
egories of meaning for us to interpret how the body
appears to us as sexed.
Feminists have critiqued essentialist understandings
of both sexuality and gender and have played an
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important role in establishing a body of research and
theory that supports the social constructionist view.
However, feminist theories of sexuality are not only
concerned with detailing the ways in which our sexual
desires and practices are socially shaped; they are also
concerned to ask how sexuality relates to gender and,
more specically, what the relationship is between
sexuality and gender inequality? It is this question
which perhaps more than any other provoked discus-
sion and controversy between feminists during the
1970s and 1980s.
Most feminists would agree that historically women
have had less control in sexual encounters than their
male partners and are still subjected to a double
standard of sexual conduct that favors men. It is, for
example, seen as natural for boys to want to have sex
and with dierent partners, whereas exactly the same
behavior that would be seen as understandable and
extolled in a boy is censured in a girl. Sexually active
women are subject to criticism and are in danger of
being regarded as a slut or a slag. Where feminists
tend to dier is over the importance of sexuality in
understanding gendered power dierences. For many
radical feminists sexuality is understood to be one of
the key mechanisms through which men have regu-
lated womens lives. Sexuality, as it is currently
constructed, is not merely a reection of the power
that men have over women in other spheres, but is also
productive of those unequal power relationships.
Sexuality both reects and serves to maintain gender
divisions. From this perspective the concern is not so
much how sexual desires and practices are aected by
gender inequalities, but, more generally, how con-
structions of sexuality constrain women in many
aspects of their daily lives from restricting their access
to public space to shaping health, education, work,
and leisure opportunities (Richardson 1997). Fears of
sexual violence, for instance, may result in many
women being afraid to go out in public on their own,
especially at night. It is also becoming clearer how
sexuality aects womens position in the labor market
in numerous ways; frombeing judged by their looks as
right or wrong for the job, to sexual harassment in the
workplace as a common reason given by women for
leaving paid employment.
Other feminists have been reluctant to attribute this
signicance to sexuality in determining gender rela-
tions. They prefer to regard the social control of
women through sexuality as the outcome of gendered
power inequalities, rather than its purpose. There is
then a fundamental theoretical disagreement within
feminist theories of sexuality, over the extent to which
sexuality can be seen as a site of male power and
privilege, as distinct from something that gendered
power inequalities act upon and inuence.
In the 1990s a new perspective on sexuality and
sexual politics emerged fueled by the impact of HIV
and AIDS on gay communities and the anti-homo-
sexual feelings and responses that HIV\AIDS revita-
lized, especially among the moral right. One response
by scholars was queer theory; a diverse body of work
that aims to question the assumption in past theory
and research that heterosexuality is natural and
normal. Queer theory is often identied, especially in
its early stages of development, with writers associated
with literary criticism and cultural studies, and gen-
erally denotes a postmodernist approach to under-
standing categories of gender and sexuality. The work
of Eve Sedgwick (1990), Judith Butler (1990), and
Teresa de Lauretis (1991), for instance, might be taken
as key to the development of queer theory.
A principal characteristic of queer theory is that it
problematizes sexual and gender categories in seeking
the deconstruction of binary divides underpinning and
reinforcing them such as, for instance, woman\man;
feminine\masculine; heterosexual\homosexual; es-
sentialist\constructionist. While queer theory aims to
develop existing notions of gender and sexuality, there
are broader implications of such interventions. As
Sedgwick (1990) and others have argued, the main
point is the critique of existing theory for its hetero-
sexist bias rather than simply the production of theory
about those whose sexualities are marginalized such
as, for example, lesbians and gay men.
Sexuality is the primary focus for analysis within
queer theory and, while acknowledging the import-
ance of gender, the suggestion is that sexuality and
gender can be separated analytically. In particular,
queer theorists are centrally concerned with the
homo\heterosexual binary and the ways in which this
operates as a fundamental organizing principle in
modern societies. The emphasis is on the centrality of
homosexuality to heterosexual culture and the ways in
which the hetero\homo binary serves to dene
heterosexuality at the center, with homosexuality
positioned as the marginalized other. Feminist per-
spectives, on the other hand, have tended to privilege
gender in their analysesthe woman\man binary
and, as I have already outlined above, are principally
concerned with sexuality insofar as it is seen as
constitutive, as well as determined by, gendered power
relations.
Of particular signicance for the development of
our understanding of the relationship between queer
and feminismis a rethinking of the distinction between
sexuality and gender.
The relationship between sexuality and gender has,
then, been theorized in dierent ways by dierent
writers. These can be grouped into ve broad cat-
egories. First, some theories place greater emphasis on
gender insofar as concepts of sexuality are understood
to be largely founded upon notions of gender (Gagnon
and Simon 1973, Jackson 1996). For example, it is
impossible to talk meaningfully about heterosexuality
or homosexuality without rst having a notion of
ones sexual desires and relationships as being
directed to a particular category of gendered persons.
Others propose a dierent relationship, where sexu-
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SER 741
ality is understood to be constitutive of gender. The
radical feminist Catherine MacKinnon (1982), for
example, suggests that it is through the experience of
sexuality, as it is currently constructed, that women
learn about gender, learn what being a woman
means. Specically, woman is dened by what
male desire requires for arousal and satisfaction and is
socially tautologous with female sexuality and the
female sex (MacKinnon 1982). A third way of
understanding the relationship between sexuality and
gender, which moves away from causal relationships
where one is seen as more or less determining of the
other, is one which allows for the possibility that the
two categories can be considered as analytically
separate, if related, domains. Gayle Rubin
(1984) in her account of what she terms a sex\gender
system, and others who have been inuenced by her
work, such as Eve Sedgwick (1990), make this dis-
tinction between sexuality and gender, which means
that it is possible for sexuality to be theorized apart
from the framework of gender dierence. This is a
model favored by many queer theorists. Alternatively,
we may reject all of these approaches in favor of
developing a fourth model which relies on the notion
that sexuality and gender are inherently co-dependent
and may not usefully be distinguished one from the
other (Wilton 1996).
The stage in our contemporary understandings of
sexuality and gender are such that there can be no
simple, causal model that will suce to explain the
interconnections between them. However, rather than
wanting to privilege one over the other, or seeking to
analytically distinguish sexuality and gender or, alter-
natively, to collapse the two, we might propose a fth
approach which investigates their complex interimpli-
cation (Butler 1997). It is this articulation of new
ways of thinking about sexuality and gender in a
dynamic, historically, and socially specic relationship
that is one of the main tasks facing both feminist and
queer theory (Richardson 2000).
See also: Female Genital Mutilation; Feminist Theory:
Psychoanalytic; Feminist Theory: Radical Lesbian;
Gay, Lesbian, and Bisexual Youth; Gay\Lesbian
Movements; Gender and Reproductive Health;
Gender Dierences in Personality and Social Behav-
ior; Gender Ideology: Cross-cultural Aspects; Hetero-
sexism and Homophobia; Lesbians: Historical
Perspectives; Male Dominance; Masculinities and
Femininities; Prostitution; Queer Theory; Rape and
Sexual Coercion; Rationality and Feminist Thought;
Regulation: Sexual Behavior; Sex Oenders, Clinical
Psychology of; Sex-role Development and Education;
Sex Therapy, Clinical Psychology of; Sexual Attitudes
and Behavior; Sexual Behavior: Sociological Per-
spective; Sexual Harassment: Legal Perspectives;
Sexual Harassment: Social and Psychological Issues;
Sexual Orientation and the Law; Sexual Orientation:
Biological Inuences; Sexual Orientation: Historical
and Social Construction; Sexual Risk Behaviors;
Sexuality and Geography; Teen Sexuality; Trans-
sexuality, Transvestism, and Transgender
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Identity. Routledge, New York
Butler J 1997 Critically queer. In: Phelan S (ed.) Playing with
Fire: Queer Politics, Queer Theories. Routledge, London
de Beauvoir S 1964 The Second Sex. Bantam Books, New York
de Lauretis T 1991 Queer theory: lesbian and gay sexualities: an
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Delphy C 1993 Rethinking sex and gender. Womens Studies
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Gagnon J H, Simon W (eds.) 1967 Sexual Deiance. Harper &
Row, London
Gagnon J H, Simon W H 1973 Sexual Conduct: The Social
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Jackson S 1996 Heterosexuality and feminist theory. In:
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D. Richardson
Sexuality and Geography
Geographical questions concerning sexuality are
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International Encyclopedia of the Social & Behavioral Sciences ISBN: 0-08-043076-7
Copyright #2001 Elsevier Science Ltd.
All rights reserved.
SER 742


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Case No. 12-17668: Plaintiffs-Appellants

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, that is representative of the US population. Members of the KnowledgePanel

are randomly recruited

survey is 65%. Appendix A presents a comparison of age-appro-

) beside it indicate that the groups dichotomous variable estimate

0.41 0.37 0.39

Currently employed full-time 0.49 0.26

0.34 0.41 0.42 0.47

0.15 0.14 0.13

0.07 0.08 0.10 0.05 0.09

0.25 0.20 0.12

0.16 0.12 0.16

Family-of-origin safety/security 4.13 3.12

3.58 3.95 4.03 3.85

1.95 2.01 1.91

Current relationship quality index 4.11 3.83 3.63

3.79 3.95 3.80

2.35 2.43 2.35

3.49 3.31 3.33 3.43

1.19 1.30 1.21

0.55 0.42 0.44

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