Bench Memos NRO’s home for judicial news and analysis.

Walker’s Gender Follies August 13, 2010 2:14 P.M. By Ed Whelan   Among Judge Walker’s astounding assertions are his claims that “the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes” (slip op. at 127 (emphasis added); see also purported finding of fact # 70) and that the “genetic relationship between a parent and a child is not related to a child’s adjustment outcomes” (slip op. at 96 (emphasis added)).  In their stay motion to the Ninth Circuit, Prop 8 proponents summarize in a long footnote just a small part of the record evidence and other authority that they presented to Walkerin refutation of such claims.  The rest of this post is excerpted from that footnote.  “DIX” references are to defendants’ trial exhibits.  (I’ve deleted some citations.) [T]he district court’s startling conclusion that a child does not benefit from being raised by its own married mother and father, and that indeed it is irrational to believe otherwise, is plainly unwarranted.  The law “historically … has recognized that natural bonds of affection lead parentsto act in the best interests of their children.”  Parham v. J.R., 442 U.S. [584,] 602 [(1979)]; see also Gonzalez v. Carhart, 550 U.S. 124, 159 (2007) (“Respect for human life finds an ultimate expression in the bond of love the mother has for her child.”); cf. United Nations Convention on the Rights of the Child, Art. 7 (“as far as possible, [a child has the right] to know and be cared for by his or her parents”). Indeed, “[a]lthough social theorists . . . have proposed alternative child-rearing arrangements, none has proven as enduring as the marital family structure, nor has the accumulated wisdom of several millennia of human experience discovered a superior model.”  Courts have thus repeatedly upheld as rational the “commonsense” notion that “children will do best with a mother and father in the home.” [citations omitted] Cf. Bowen v. Gilliard, 483 U.S. 587, 614 (1987) (Brennan, J., dissenting) (“the optimal situation for the child is to have both an involved mother and an involved father”). This widely shared and deeply engrained view is backed up by social science.  See, e.g., Kristin Anderson Moore, et al., Marriage From a Child’s Perspective, Child Trends Research Brief at 6 (June 2002) (*DIX26) (“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 parents in a low-conflict marriage.”); id. at 1-2 (“[I]t is not simply the presence of two parents, … but the presence of two biological parents that seems to support children’s development.”); Wendy D. Manning & Kathleen A. Lamb, Adolescent Well Being in Cohabiting, Married, & Single-Parent Families, 65 J. Marriage & Fam. 876, 890 (2003) (DIX21) (“The advantage of marriage appears to exist primarily when the child is the biological offspring of both parents.”); see alsoAffidavit of Professor Steven Lowell Nock, Halpern v. Attorney General of Canada, Case No. 684/00 (Ont. Sup. Ct. Justice 2001) (DIX131, attached as Exhibit C) (detailing flaws in same-sex parenting scholarship and studies).  In light of all of this evidence, the district court’s conclusions that “the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes,” and that the biological bond between a child and its mother and father “is not related to a child’s adjustment outcomes,” are simply unsupportable.

Dr. Jennifer Roback Morse, Ruth Institute

Cohabitation: Why Not?

Many women view living together as a stepping-stone toward marriage, with the idea that cohabiting will help them enjoy a better marriage in the future. This could not be further from the truth. A recent survey of the literature on cohabitation concluded, “No positive contribution of cohabitation to marriage has ever been found.” 40* Not only is cohabitation not good preparation for marriage, it is not a good long-run alternative to marriage. Cohabiting relationships are less stable than marriage, and this instability creates a whole series of problems. Demographers have come up with a new term to describe this situation. They call it “multiple partner fertility.”41 We can get an idea of the magnitude of this problem with one statistic: of all unmarried urban mothers with more than one child, almost 70 percent exhibit multiple partner fertility; that is, they have children by more than one man.42 The children of racial minorities are more likely to be born to unmarried mothers. In 2005, 37 percent of all U.S. children were born to unmarried mothers. This includes 70 percent of African American children, 48 percent of Hispanic children, and 25 percent of non-Hispanic whites.43 Rather than regale the reader with statistics, let me tell the story of a hypothetical young woman named Lucy. Not all of the outcomes that happen to Lucy happen to each and every unmarried mother. Lucy’s story is a composite of the outcomes that are systematically more likely to happen to unmarried women, or to cohabiting women, than to married women. (I have omitted the hazards associated with drugs and alcohol, so as not to cloud the marriage issue.) Telling Lucy’s story illustrates what multiple partner fertility looks like in the lives of ordinary people of modest means. Lucy has graduated from high school, has a job as a dental assistant, and lives with her boyfriend, Izzy. Lucy becomes pregnant. It isn’t entirely clear whether this is an “accidental” pregnancy. She has been on the Pill, but she missed one or two. (The failure rate for the Pill for low-income, cohabitating women younger than twenty is 48 percent.)44 Lucy is glad to be pregnant. She has always wanted to be a mother. Izzy isn’t so happy. He isn’t ready to be a father. Pregnancy was not part of the deal. He feels cheated. They quarrel frequently, and he sometimes hits her. (Domestic violence is more common in cohabiting couples than in married couples.)45 As her pregnancy proceeds, Lucy becomes less and less interested in sex, and Izzy becomes less and less interested in her. He has sex with a former girlfriend. (Cohabiting couples are more likely to have “secondary sex partners.”)46 He feels entitled, since he isn’t “getting any” from Lucy, and after all, she cheated him by becoming pregnant in the first place. They quarrel some more, and he moves out for a while. By the time baby Anna is born, Izzy has moved back in with Lucy. Now Lucy isn’t so happy. In fact, she becomes depressed. (The presence of children increases a cohabiting woman’s probability of depression. Children do not affect a married woman’s probability of becoming depressed.)47 Izzy is caught up in the excitement for a while. But the combination of sleep deprivation, a needy infant, and a preoccupied and depressed Lucy are more than Izzy can handle. He moves out for good when Anna is six months old. (Cohabiting relationships are less stable than married relationships.)48 He never offers to contribute support to the care of Anna. (Never-married fathers are much less likely to pay child support than fathers who were once married to the child’s mother.)49 Lucy finds that she can’t handle the demands of her job and the care of her baby by herself. She goes to court to try to get Izzy to pay child support. The court orders him to pay an amount that is nowhere near enough for Anna’s needs. He does not have a very good job, so Lucy seldom collects even the small amount the court has ordered. (Cohabiting men earn half the income of married men.)50 In the meantime, Izzy does not feel like working at a normal job with a normal payroll, since his wages are garnished for Anna’s care. He works under the table at informal jobs, keeping for himself the little income he makes. Lucy moves back in with her mother. Everything goes smoothly until Lucy becomes lonely. She becomes involved with Tom, who has a decent job and thinks Lucy is pretty and the baby is cute. Lucy leaves her mom and moves in with Tom. Lucy becomes pregnant again. Tom becomes less and less tolerant of Anna, who is a toddler by this time, but Tom is very happy when their new baby is a boy. Of course, baby John takes much time and energy from both Anna and Tom. Anna feels neglected, cries a lot, and misbehaves. Lucy is exhausted. Tom helps her with the new baby, but he is not interested in Anna. Both parents begin to show a preference for little John. (Men spend less time with their partners’ children than with their own biological children. The presence of a stepfather decreases the time a mother spends with her children.)51 Anna’s behavior deteriorates. Lucy and Tom quarrel about Anna’s poor behavior. One night, Lucy takes baby John and Anna and slips out. She goes back to her mother. Tom is furious. He wants her back, and he wants his son back. Lucy refuses. She gets a court order for child support; he gets a court order for visitation rights. He is trying to be a good father, as he understands it. His visits with his son are anguished. The little boy doesn’t understand what is happening. He wants to go home with his daddy. (Parental divorce increases a boy’s probability of depression, regardless of the quality of parenting. Nothing seems to compensate for the sense of sadness that boys experience at the loss of their fathers from the home.)52 Meanwhile, Lucy finds a new boyfriend, Joe. She, Anna, and Johnny move in with him. You guessed it: she gets pregnant again. The new boyfriend does not like little John, the reminder of Lucy’s past relationship with Tom. One day while Lucy is at work, Joe slaps John. Lucy asks him how Joe got a bruise on his thigh. Joe says he fell. Lucy wants to believe him. The second time she comes home to find a new bruise on Johnny, Joe admits that he slapped him. (Children are more likely to be abused by their mother’s boyfriend than by anyone else.)53 According to one study, children living in a household with an unrelated adult are fifty times more likely to die of inflicted injuries than children living with two biological parents.54 At the same time, Anna’s behavior is deteriorating. She hasn’t seen her own father since infancy. Neither Tom nor Joe has been very interested in Anna. (Children in cohabiting stepparent households are more likely to feel sad and lonely, and have poorer self-control.)55 By this time Anna is in first grade, and she frequently misbehaves in school. Lucy gets a call from the principal, Mr. Knowles. He tells Lucy that he is concerned about Anna. Mr. Knowles thinks Anna needs a father figure, and would benefit from counseling. (Fatherless girls become sexually active earlier than girls who are with their fathers.)56 They also get their periods earlier.57 Lucy gets angry and says there is nothing wrong with her daughter. Her boyfriend Joe is a perfectly fine father figure. In her heart, though, she knows all is not well with Anna. The girl still wets the bed almost every night. Joe complains about the odor, and makes fun of her. Lucy can’t really stand up to him. She doesn’t want to lose him, and she needs his income. Little Anna is on course for abusing drugs and alcohol, for teen pregnancy, and for a lifetime of multiple partner fertility herself.58 Little Johnny is at a higher risk for violence, delinquency, and drug use.59 If Lucy had married one of those men and stuck with him, her life chances and those of her children would be greatly enhanced. Some of her children might have had the problems associated with stepfamilies, but at least the subsequent children would have the benefit of both parents married to each other. Without marriage, the fathers of Lucy’s children are unlikely to contribute much, if anything, to the care of their children. One might object that some of these problems are associated with teen pregnancy and poverty. That is partly true. But the deeper truth is that channeling sexual behavior and childbearing through marriage creates wealth rather than dissipates it. Men behave differently when they marry, and especially when they become married fathers.60 One might also object that Lucy’s case of switching from partner to partner is extreme and atypical. But once we jettison permanence and exclusivity as serious social norms, we are on weak ground in trying to say that Lucy shouldn’t have ditched her boyfriends quite so casually. If a husband is an unnecessary accessory to childbearing, why isn’t it okay to have multiple children, each with different fathers? If one divorce without cause is acceptable, why aren’t multiple divorces? In other words, once we’ve discarded Catholic principles, alternative principles are not so obvious. One might object that women of higher income and education will not face as many and as serious problems as Lucy. Perhaps a more highly educated, wealthier woman could cohabit, raise children, and do just fine. In some cases, this may prove to be correct. After all, wealthier people have more resources to face all kinds of life challenges than those of lower income. Indeed, every problem of the poor is exacerbated by the failure of marriage.