Christian Family Law Association

I. Family Defined

A "family" is defined as a group of persons connected by blood, by affinity, or by law, especially within two or three generations. It is also defined as a group consisting of parents and their children, or a group of persons who live together and have a shared commitment to a domestic relationship.[FN1] In this discussion, the definition of family will be expanded to include a single person who lives alone. So a family should be defined in terms of the identity of the one or more people who make-up the household. A "household" is defined as a family living together, or a group of people who dwell under the same roof.[FN2] In this discussion, the definition of household will be expanded to include a single person who lives alone. By expanding the terms "family" and "household" to include singles who live alone, the terms merge and include all categories of people. So a family or household is represented by the following eight categories:

1. A single person living alone;

2. A single person with one or more children;

3. Unmarried heterosexual persons;[FN3]

4. Unmarried heterosexual persons with one or more children;

5. Unmarried same-sex persons ;[FN4]

6. Unmarried same-sex persons with one or more children;

7. Persons married to each other; and,

8. Persons married to each other with one or more children.

For the sake of our discussion, the term "alternative family" has been coined to represent any of the first six categories listed above. The term "traditional family" will be used to represent the last two categories listed above. All families and households in America today fall into one or more of the six categories listed above.

II. The Emergence of Alternative Families in American culture

Looking back over the past few decades, sociologists and demographers who follow population patterns have seen a remarkable shift from the majority of household being composed of traditional families, i.e., a husband and wife (some with a child or children), to the majority of households being composed of singles (some with a child or children), and unmarried couples (some with a child or children). Today, traditional families are now in the minority for the first time in American history. If we define singles as all adults who are unmarried, indeed, the majority of Americans are now single. The increase in singleness has resulted primarily from young people delaying the age at which they marry, singles who remain unmarried following divorce or death of a spouse, singles who choose not to marry altogether, and singles who are unmarried cohabitors (both heterosexual and homosexual). In support of this shift, consider the following statistics:

• Based on U.S. Census data, unmarried household rose from 49.7% in 2000 to 52.5% in 2006. Unmarried households outnumbered married households for the first time in U.S. history. This trend is also true in North Carolina where only 49% of households were composed of married couples in 2006.

• Based on U.S. Census data, 44% of the adult population (i.e., 100 million people) were unmarried in the year 2000 as compared to 41% in 1990 and 36% in 1970.

• Based on U.S. Census data, the number of cohabiting unmarried couples increased 72% between 1990 and 2000. In 2000 there were ten times more cohabiting unmarried couples than there were in 1960. In 2000 there were 11 million people in the U.S. living with an unmarried partner. That translates to 5.5 million unmarried households.

• Based on U.S. Census data, the most common U.S. household type in 2000 was the 27 million Americans who live alone, compared to the 25 million households composed of a husband, wife, and child.

• Based on data from the National Center for Health Statistics, one-third of all births in America in the year 2000 were to unmarried women.

• Based on a 1995 Harris poll, 90% of people believe society should value all types of families.

• Based on a 2001 Gallup poll, 45% of people in their twenties believe the government should not be involved in licensing marriage, and 43% of the same group believe that cohabiting couples should receive the same benefits as married couples.

• Based on U.S. Census data, 73% of men 20-29 years of age in 2006 indicated they had never been married, compared to 64% in the year 2000. The same survey for women was 62.2% in 2006 as compared to 53.4% in 2000. In 2006 only 23.5% of men and 31.5% of women in their 20s were married, as compared to 31.5% of men and 39.5% of women in 2000.

These statistics are compelling proof of the decline of traditional marriages and families and the growth of alternative families. What happened to bring about these changes?

Most people agree that a strong and stable society is dependent upon healthy families. Traditionally, most people also agreed that healthy marriages are the foundation for healthy families. However, for many people today, marriage has become an antiquated institution.[FN5] Those who do value marriage are concerned that it is being redefined in such a way that its original purposes are becoming perverted. At stake in the debate that rages over the redefining of families and marriage are two important questions: (1) How have we already allowed family and marriage to be redefined by our culture? and, (2) In a democratic society, what legal changes, if any, need to be made to align our laws with these cultural changes so as to reunify the American family so that our society remains strong and stable? In arriving at answers to these questions, it is important to understand how we arrived at the place we are today.

Societal views and the laws of the 1950s required young couples to prioritize their lives – first love, then marriage, and only then the baby carriage. These ideas were born in a modern era when the majority, and certainly the ruling class, adhered to biblical truths about the immorality of unmarried cohabitation and homosexuality. Society viewed living together outside of wedlock as "living in sin," or "shacking up." Living together also posed the risk of criminal prosecution under fornication, unlawful cohabitation, and sodomy laws. So society viewed unmarried cohabitation as legally, socially, and morally repugnant.

The 1960s brought about the beginning of a cultural revolution. Civil rights, the Vietnam War, illicit drugs, the sexual revolution, the availability of contraceptives, feminism, particularly the expanded role of women in the workplace, no-fault divorce, the rise in illegitimate births, the repeal and non-enforcement of morality laws, the decline of modernism, and the new openness of gay, lesbian, bisexual, and transsexual relationships were all factors in the cultural revolution. Any idea or person that was part of "the Establishment" was under the microscope. So traditional family values and the priorities that went with them, came under the microscope as well.

By the 1970s, long before redefining marriage became an issue, the painful process of redefining families was well underway. This period brought about a remarkable shift away from marriage and toward singleness. One factor was the significant increase in the number of independent working women who were no longer dependent on men for their support. Equal rights for women meant that young adult women were no longer relegated to positions of housewife and motherhood. With the availability of contraceptives and the legalization of abortion, women could choose if and when they wanted to be mothers. Women were no longer persuaded to enter into ill-advised marriages because of pregnancy. They began to earn similar wages to their male counterparts which empowered them to live self-supported lifestyles and remain single. Homosexuality also became more socially acceptable during this period. In the 1950s and 1960s, those involved in same-sex relationships generally kept their sexual orientation secreted from family and friends. The modern view was that homosexuality was a mental disorder and was legally, socially, and morally unacceptable behavior in a civilized society. In the early 1970s the psychological community eliminated homosexuality as a mental disorder and encouraged mental health providers to treat homosexuals the same as heterosexuals. Numerous celebrities began to publicly embrace their homosexuality. The media and film community began to portray homosexuals as healthy, normal, and morally acceptable people. In the 1970s, greater numbers of unmarried couples, both heterosexual and homosexual, began to form live-in relationships, acquired property together, had children together, and formed other ties that traditionally had been reserved only for married couples. Societal views on unmarried cohabitation became more liberal and accepting of this new alternative family form. Criminal sanctions that once prohibited unmarried cohabitation were repealed in many states, held unconstitutional by others, and in states where such laws remained on the books they were no longer enforced. Traditional societal views that ostracized cohabiting unmarried couples, characterizing them as couples who were "living in sin" or "shacking up," were for the most part abandoned. Segments of society began to characterize those who support morality laws as "judgmental" and "intolerant." Despite the fact that unmarried couples did not receive the same employment and governmental benefits as those who were married, they chose not to be bound in the institution of marriage with the monogamy and the panoply of divorce laws that went with it. Although there remained significant resistance to redefining American families, particularly within the religious sector, the truth is that the concept of American families was already being redefined.

By the mid-1980s and early 1990s, families had already been redefined to include single households, same-sex couple households, unmarried couple households, (collectively "alternative families") and married couple households. Young adults no longer viewed marriage as the legally, socially and morally correct thing to do. So there was an even greater shift from marriage toward singleness. Contributing factors included young adults in their 20s who were beginning to make the choice to decline or delay marriage because of economic or social factors that had made it more difficult for them to reach independence. Also, there was a significant increase in the number of highly educated women who had fewer highly educated men of comparable age to partner with. The cultural revolution also continued with a significant ideological shift that rejected traditional views of truth and morality. Many people began to reject marriage as an institution. By the early 1990s many young adults began to reject the modern culture and all that it had to offer. The rejection of the idea of absolute truth, particularly the idea of biblical truth which mandates marriage before cohabitation, was transforming American ideology into a culture of postmodernism, also referred to as relativism. Young adults pointed to the marriage failure rates of their parents and grandparents as a basis for the rejection of marriage as a legal, moral, and societal institution. Choosing to live together without benefit of marriage was socially and legally acceptable. Relativism and tolerance became the trademarks of a new postmodern era where anything goes as long as it does not harm someone else. In the process of this ideological shift, alternative families became a reality.

Based on a combination of these factors discussed above, many people today embrace the idea that living together outside of marriage is a legally, socially, and morally acceptable alternative family form that will produce a healthy family. Most people today feel that every person is free to decide for herself or himself whether unmarried cohabitation is appropriate or not. Most young people believe the decision to live together outside of marriage should not be the subject of criticism by family, friends, or the church. People engaged in these alternative lifestyles generally view traditional moral laws related to marriage as unfair, discriminatory, and just not having caught-up with the times. Those involved in alternative lifestyles now have sufficient numbers to lobby for changes in laws that adopt their points of view. In general they seek to be afforded the same benefits as those enjoyed by married persons. The call for legal changes include enacting laws that give unmarried relationships legal recognition equal to married relationships, the elimination of marital status discrimination in tax and other laws, the passage of same-sex marriage laws, and the elimination of distinctions in the laws based on gender or sexual orientation. On the corporate level, they call for companies to offer health insurance and other benefits to domestic partners of all unmarried employees, regardless of gender or sexual orientation. On a social level, many people in alternative families characterize members of religious sects and others who oppose their views as intolerant uninformed bigots. They call for the passage of hate crime laws to silence those who publicly make statements against them. They oppose attitudes within families that support gender based stereotypes and same-sex traditional marriages. For instance, they discourage family members from asking persons (male or female) in relationships when they are going to get married. Traditionalists or modernists, usually the older and married persons who support traditional marriage, who make and enforce the laws, and various religious groups, have resisted changes in the laws related to redefining families and marriage. The result has been a cultural war that has literally divided families, churches, organizations, and the American people. It is not unusual today for an attorney to see family law clients who are victims of this cultural war.

Now that the concept of family has been redefined, the burning issue is whether the benefits available to married couple households will be made available to single, same-sex couple and unmarried couple households (referred to collectively as "alternative families"). A vocal majority (the "traditionalists"), composed primarily of those who are married and those in the religious community, resist redefining marriage to include alternative families. They contend that marriage is a covenant between a couple and God, and that God will not bless these alternative families or America for perverting marriage in this way. We saw the power of the traditionalists when many in this groups saw the election of 2004 as a referendum on same-sex marriage. Those in this group have spear-headed efforts to call for a constitutional amendment to prevent the redefinition of marriage as anything but a union between one man and one woman. They have also sought to amend constitutions in many states to bar efforts to redefine marriage. A vocal minority, composed of gays, lesbians, bisexuals, and transsexuals, contend that including these alternative families within the definition of marriage is a civil rights issue and will not harm those who oppose them. The latter groups has been vocal in the media and Hollywood films, and they have primarily used demonstrations and the judiciary to make their points. They have been successful in redefining marriage to include same-sex couples in some states.[FN6] Unfortunately, singles and unmarried heterosexual couples have largely been left out of the debate, but they nevertheless are part of how our culture is redefining families.

In conclusion, the growth of alternative families has significantly increased in the past three decades to the point that the balance of social, economic, and political power has shifted in their direction. For the traditionalists, like it or not, the laws are changing, and will continue to change. Many courts view this as the new frontier of civil rights. Regardless of how it is structured, there will be greater recognition of alternative families as being on a par with traditional families. Because of the lack of research on the effects many of these changes will have on our future, it is safe to say that we are involved in a huge cultural-legal experiment. Only time will tell whether the redefining of family and marriage will produce healthy families, and whether these families will strengthen or weaken the foundation of our society.

Regardless of where family law practitioners may stand in relation to the cultural and legal changes in the redefining of family and marriage, the truth is that all of us will be redesigning our family law practices to address the legal issues that will be presented. It may be frightening for some to think that our traditional laws related to marriage and its dissolution, already have no application to the majority of households that are composed of alternative families. For instance, laws related to premarital agreements, separation agreements, postseparation support and alimony, equitable distribution of property, annulment, and divorce have no application to alternative families. However, this does not mean that family law practice must become increasingly irrelevant as the cultural changes that are discussed herein continue to occur. Instead, progressive family law attorneys will need to retool their practices to meet the challenges faced by these alternative families while at the same time continuing to serve traditional families. Since these alternative families have needs to define the legal nature of their relationships, where the law has failed to do so, family law attorneys will be asked to prepare agreements, e.g., parenting agreements, property settlement agreements, cohabitation agreements, or domestic partnership agreements. These agreements are necessary to define their legal rights, property ownership, obligations and provide a means of protecting their interests in the event their relationship dissolves. Most of these alternative families are presently conducting their relationships without any legal structure or representation whatsoever. Finding ways to competently represent alternative families, many of whom lack the financial resources to hire an attorney, will continue to be a challenge for family law attorneys. Those on the forefront of civil rights issues for alternative families will be filing cases and making constitutional arguments in appellate courts to help bring economic and social equality to alternative families. Family law attorneys will also be asked to represent the views of traditionalists, who view alternative families as a threat to their family and marriage, so they will need representation as well. Members of the Christian Family Law Association believe that Christian ethics and perspectives are important to the formulation of future laws for alternative and traditional families by the legislature and the courts.

Today’s family law attorneys need a basic understanding, not only of the family laws and how they are changing. but also of disciplines like psychology, science, sociology, and theology. Our biggest downfall as family law attorneys is not our ignorance of the law, but instead our ignorance of the culture and subcultures that we represent. This understanding is critical as the culture has changed so dramatically over the past couple of decades. In the debate to redefine families and marriage, each of the above mentioned disciplines has its advocates. An in-depth discussion of these disciplines, and their respective roles in the family law process, is certainly beyond the scope of this discussion. However, an effort has been made to include an introduction to some of these disciplines as they relate to family law and culture in the discussions on this website.

Thirty years ago, the typical family law client was less conflicted in her or his cultural, legal, and spiritual views. Today’s postmodern family law clients are typically children of broken homes or dysfunctional families. These clients, in addition to legal issues, often have significant personality disorders that need professional psychological help. Many have rejected the ideological views of their parents. They are often suspicious of authority figures. They are likely to reject law altogether as authority for how they should live their lives. Many view law and lawyers as a means to inflict pain on others rather than mediators and problem solvers. They often have no faith in what law can do for them. Postmoderns particularly believe that truth is incapable of being defined. Postmodern clients often rebel against all truth, particularly any biblical idea of authority or truth. One of this author client even refused to entertain the idea that there are no square triangles! Clients from alternative families, where there has been little or no legal regulation in their lives, find it quite difficult to accept being regulated, once new laws that regulate their relationships are put in place. Obedience to court orders is a foreign idea to them. So the challenge will be to help these family law clients understand that there is some authority, hopefully the law, that they must answer to in the here and now for how they live their lives. The struggle for family law attorneys is, and will continue to be, to have credibility and relevance with these clients. Today’s family law attorney will need to draw on the disciplines, mentioned above, to be effective advocates and counselors for their clients.

Footnotes:

[FN1] Black’s Law Dictionary 8th ed. 2004, family.

[FN2] Black’s Law Dictionary 8th ed. 2004, household.

[FN3] The term "heterosexual," as used here, does not necessarily imply the sexual orientation of those in the family, but to indicate the composition of the household to include persons of the opposite sex. For instance, a grandmother living with her grandson may constitute a family under this category. The term of course would also include unmarried cohabitors of the opposite sex who have sex together.

[FN4] The term "same-sex," as used here, does not necessarily imply the sexual orientation of those in the family, but to indicate the composition of the household to include persons of the same sex. For instance, a grandmother living with her granddaughter may constitute a family under this category. The term of course would also include unmarried same-sex cohabitors who have sex together, i.e., gay and lesbian couples.

 [FN5] Lynne Marie Kohm and Karen M. Groen, Cohabitation and the Future of Marriage, 17 Regent U. L. Rev. 261 (2004-5).

[FN6] For instance, see Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003). Same-sex marriage is now recognized in Connecticut, Iowa, Massachusetts, and Vermont. Several other states, including Connecticut, Hawaii, Maine, New Hampshire, New Jersey, Oregon, Vermont, Washington state, as well as Washington, D.C. offer civil unions or domestic partnerships, which grant same-sex couples some or all of the same rights under state law granted to married couples. New Mexico, New York, and Rhode Island have indicated that their states would recognize foreign same-sex marriages, although those states do not permit same-sex marriages, or any other form of same-sex relationship. A New York appellate court ruled on February 1, 2008 that same-sex marriages performed outside New York must be recognized as valid within the state. However, same-sex couples are not yet permitted to wed in New York. As of May 2009, constitutional amendments prohibiting same-sex marriage exist in the following 30 states: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Hawaii, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin.

 [FN7] This is particularly true with respect to illicit sexual relationships and the economic costs of such relationships that are involved with unmarried cohabitation. For further discussion see:

http://christianfamilylawassociation.org/same-sex_relationships/admin/

http://christianfamilylawassociation.org/unmarriedcohabitation/admin/