Cohen on Marriage and the Law for National Law Journal

"A prime goal of marriage and family law should be to identify new ways to suport marriage as a social institution, so that each year more children are protected by the loving marital unions of their mother and father," writes Professor Lloyd Cohen in a National Law Journal article examining whether the law's goal should be neutrality toward or promotion of traditional marriage as the social ideal.

Cohen's article proposes several criteria for identifying the types of legal reforms that strengthen marriage and argues that if courts succeed in separating the legal institution from prevailing social understandings of marriage, the institution itself suffers.

A Problematic Ideology, The National Law Journal, January 15, 2006. By Lloyd Cohen.

"Marriage is not merely a legal construct. A legal system that understands that it does not create markets or motherhood must understand that marriage is not merely a legal construct, either. 'Civil marriage,' absent the broad support of civil society, is unlikely to mean much for children or society.

"Human nature exists and places limits on what law can accomplish. We may wish that all men be equally committed fathers inside and outside of marriage, but the law's commands alone will not make it so. If we want our children to know and be loved by their fathers, we must recognize the critical role of marriage in giving children loving fathers: In reality, if not in law, it is the act of lifetime commitment to the mother of one's children that cements the bonds of a father to his children.

"Social institutions matter and they matter a great deal. Sophisticated economic thinking recognizes that even purely commercial contracts depend in part on social norms. Businesspeople believe that contracts are to be honored. These internalized social ideals, as well as the reputational consequences of violating social norms, help bring the benefits of contract to life.

"If the insight that social norms matter is true for a purely financial institution, such as a commercial contract, how much more must it be for something as primordially social as marriage? Our shared understanding of a basic social institution like marriage is affected by how the law describes, understands and enacts marriage."

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