 This program is brought to you by Emory University. There are three things that people will die for. Their faith, their freedom and their family. And in our Law and Religion Center we study all three. So far this morning we have dealt with the faith and freedom questions in a variety of different ways. And now in this last session of the afternoon and in our evening session we are going to shift over a major theme of our work, issues of marriage and family and the contested terrain that that presents both for law and for theology. I'd like to introduce as the chair of this last session a new leader at Emory University, Dean Jan Love. She is the Dean of the Canada School of Theology, a distinguished political scientist and theologian and ethicist with keen interest in ecumenism and the place of religion in international affairs. Ideally suited for the deanship at the Canada School of Theology. And we emphasize the Canada School of Theology because that unit on the campus has been our partner from the very start in the work of law and religion. With Dean Jim Weitz and his successors in office now leading up to Dean Jan Love we have had consistent participation by the Canada School of Theology in all of our work. 16 members of the Canada School of Theology faculty are either senior fellows or associated faculty in our center and it's been a very strong intellectual and critical tie to the work that we've been doing over the past 25 years. So it seems only eminently appropriate to have as the chair of this session the great Dean of the Canada School of Theology Dean Jan Love who will lead us in our final discussion and panel. Dean Love. Thank you Professor Whitty. Welcome to this afternoon's session on the future of law, religion and marriage. We have three presenter and I'm sure three fine presentations and so in view of the hour and the amount of time allotted to this session I think we will move right into the presentations. The first is by Margaret F. Brinnig who is from Seton Hall University JD is from Seton Hall University and her PhD is from George Mason University. Pardon me. She is the Fritz Duda Family Professor of Law at the University of Notre Dame. She specializes in family law, contracts and dispute resolution and is known internationally for her work on law and economics of the family. She's written our co-authored seven books and more than 70 articles including from contract to covenant beyond the law and economics of the family and most recently the two volume collection economics of family law. Professor Brinnig. Hopefully I'll keep everything straight. I was working on this while other people were talking I'm ashamed to say because I didn't realize that one of the things that we were supposed to be doing about problems for the next quarter century in our respective fields and that's what I'd forgotten to do so I'm going to spend just a minute and situate what I'm going to talk about the little narrow piece of what I'm going to talk about in the grand scope of what's going to happen in family law. I'm about as good at predicting as Doug Lakehawk is. One of the big themes that I think is going to be and it's related to something that Doug said too going to be talked about for the foreseeable future has to do with the de-legalization of the family or legalizing particular statuses. The whole question of whether or not marriage should be privileged as a status which of course is tied into the debate about same sex marriage and whether civil union or something shortest of same sex marriage accomplishes the same purposes. Another angle on that is a question of whether the state should get altogether out of the marriage business so that marriage should be solely a religious question something that is being talked about today in other conferences. Another whole area that we are going to continue to deal with is the constitutionalization of family law. For example, we need to deal with whether or not there are limits to what is private and intimate behavior that the state shouldn't have any interest in. The most recent Supreme Court example of this is Lawrence versus Texas the homosexual sodomy case. There are also same kind of an issue in the abortion cases and in the troxel the grandparent visitation case. How much should be private decisions how much should the state intervene? We see it also in all the concern maybe too great a concern about domestic violence that tends to permeate a lot of family law. A related question is whether or not the federal government should be involved or whether state government should. Part of what the Supreme Court has said and I'll talk about this a little bit more is that for certain parts of family law anyway it's really a state court business and particularly with child custody divorce and alimony. We also are going to continue to be dealing with the choice and the choice that courts are making and the choices that legislatures are making between treating things that go on in the family as rights or treating them as part of a relationship and that's the part that I'm going to be talking about and narrowly for purposes of this conference I want to talk about children's religious rights. This is from a quote from a recent Supreme Court decision the citation is below it's 2004 and you all can read so I'm not going to read it to you. The question is why the court is doing this I guess I've got this here what's unusual about this first of all it's unusual that the court is at least feeling that the views of the child are relevant enough to put them down in the majority opinion in a Supreme Court case there's a little picture down at the bottom of Jonas Yoder who was the plaintiff in the Yoder vs. Wisconsin case one in which only Justice Douglas was willing to talk about the or consider really important the religious views of a child this child the child who's involved in Elk Grove and Nudo was a kindergartener when the case was filed so it's not only that the opinion is worrying about the religious rights or not of a child but also this is a very young child well the question is on the board is this just throw away language is this just sort of dictation there Steven goes on to write that the girl's interest must be he says the interests of this parent and this child the father who's the non-custodial parent and the child that he had out of wedlock are not parallel and indeed are potentially in conflict and what the court seems to be saying is that it is the conflict that's involved that's going to override the presumption that a fit parent speaks for the child and should always be the spokesperson for the child and is capable of making decisions for the child gotta stop looking at this look at what you're seeing where does the presumption come from one view, a view going to be really unpopular with this audience is an economic view that's a view that Gary Becker espouses which is that parents and children's utility assumptions are interdependent in other words what makes the kid happy is also going to make the parent happy therefore you can assume that if the parent is speaking for the child that the child is going to be better off another that may be more popular with this audience is a view of John Locke that is that children while they remain minors are imperfect they're not totally capable of making decisions somebody's got to do it and that person is going to be the parent another way of thinking about this is the view that Elizabeth and Robert Scott espouse which is that parents are acting as fiduciaries for their children they're given a lot of power over decision making in order to reward them for their consistent good behavior over time with very little effort so one of the questions that the law asks and that I like to think about is whether it's ever there are ever times when our confidence that parents are speaking for their kids is misplaced one of the way that I rephrase that is to think about when is it that parents are likely to be thinking about themselves rather than about their kids the possibility and the one that tends to surface in the grandparent visitation cases and the statutes that have been written in response to the troxel case is that they're going to allow third parties to grandparent to try to seek some sort of custody access in times after the divorce of the parents or after the death of one of the parents or when the fitness of the parents is being contested in all of those cases it may be that the parents are really thinking not so much about their children and more about their own interests so what do we do if the parent or the kid is shouldering if the work of the parent is shouldering most of the responsibility most of the weight should we listen to the parent or should we listen to the child and the people down at the bottom here or grandparent visitation case and the real question that's really related to this conference as opposed to my interest in this topic in general is whether or not it matters what kids religious beliefs are frankly I mean should we just forget about it and load them in the car and put them off to church or Sunday school or religious training until they're 18 and then let them make up their own minds or should we really think about what they're doing on their own is the presumption valid when we're thinking about what kind of religious beliefs are in the child's best interest and what I want to do is to be popular once again and to give you an empirical look at what kind of outcomes you get based on various things that might measure religiosity that kids might be exposed to this is a very big national data set it's about 9,000 kids have been followed since 1979 they're now parents themselves so it's their children that are the subject in 1997 of the survey it was done originally on the Bureau of Labor Statistics website it's the studies being carried out at Ohio State I have absolutely nothing to do with it I'm just using their data there are about 3,000 kids about 2,980 kids between 12 and 14 for whom all the questions that we want to look at are answered and it's a nationally representative weighted sample to try to get at different parts of the population all over the country what we have done is we've run a whole series of equations we're trying to predict two different outcomes that you're going to see one of them is sort of a measure of optimism how often do I think good things are going to happen to me and the other one is delinquency and I've got a definition of delinquency over on this computer if anyone cares I can read you the way that they defined it we begin with a presumption that would be very common in economics which is the more money you have the happier you're going to be and the less trouble you're going to get into and then we start with just that one explanatory variable and then start adding other ones dealing with family structure dealing with the legal relationships between the parents dealing with a whole bunch of socio demographic data like race and gender of the child, education of the mother age of the child and then finally we have the two terms that we're really interested in which have they don't directly measure children's religiosity but they measure parents religiosity how often do you say that your parents pray or go to religious services or do something else religious and also the other question that's asked is how many of your peers attend worship services so this is what we're going to do I'm going to show this in a complicated version and then a less complicated version believe it or not this is the I've taken 24 different variables that we run and I'm only going to show you 13 of them so I've cut it down some but it's going to be kind of confusing what I'm doing the first one the one on the left is always sort of at the low end of the scale if the question is were you living in a married in a family where your parents were never married one would be yes I was living in that in a never married family and zero would be I was not if you're talking about income we don't take the zeros because there's people who have absolutely no income we take at the 25th and 75th percentile and you'll see the waiting or the way that we drew it behind the little bars so this is what they what they ask for the religious activities I think I've run through this already as far as your parent goes how many times how many days from zero to seven do you do something religious oh this is religious activities religious as a family such as go to church or pray and read the scriptures together they've also got a whole bunch of other non-religious kinds of activities this is the parent religiosity question and the peer religiosity question so you can actually see I've kind of run through this verbally but I will got it on the board too and this is this is the confusing thing what you've got here is the needs is the income of the family divided by the census needs standard in the way what reason we did that was because it changes based on your geographic area and on the sides of your family so we are trying to equalize how much income actually there is to spend per kid the second question there is do you live in a family where you have a stepdad or not the third one is are your parents cohabiting or not the fourth one can you see this fourth one is whether or not how old your mom was when she had a first child the second the next one is how old she is now how many years of schooling she had so these are all sort of socio-demographic variables there are a bunch of race variables and the only two significant ones because that's how they I chose the 13 things these are statistically significant coefficients are black and Asian then we've got this peers attending religious services families doing religious things parent is religious and non-religious family activities and you can see that nothing seems to matter a whole lot really except maybe bio-moms years of school seems to increase happiness so does optimism some so does more wealth if you live with cohabiting parents you're less likely to believe that good things are going to happen to you and so forth as I say this is the complicated version I'm going to show you another complicated one for the other question and then we're going to do a simple one this is the one for delinquency you'll see the one that's older kids are more likely to be delinquent or more likely to rate high on this particular scale that's the one that sticks out as does the one for adoption the one for step moms and some of the ones on the right hand side that we're going to look at in a minute okay these are the key values that I care about here we throw in both of the two that I'm going to show you we've stuck in this need scale just as to show you how much it changes based on needs this is exactly the same thing from the other diagram but it's blown up and also the relative difference between the influence of your peers going to church or religious services and your parent and you can see that as far as good things happen to me often the one that's really important and even more or just as important as needs the big big increase is when your parent is attending religious services on the other hand if you look at delinquency there's a small drop based on how much money your family has there's a big drop based on whether or not your peers your friends go to church a lot and there's just a small difference based on what your parents do these are the exact same kids in both samples so we're not getting a different effect because we're dealing with different age groups or something like that ten minutes left I'm going to be much shorter than that what do we have there it looks as though parental religiosity is related to an adolescence outlook and we've got a number of different I just showed you one but it runs exactly the same for all kinds of measures of optimism and how happy you are how much self esteem you have how much you feel you have control of your world and things like that on the bad side as far as problems go it's the same as this measure for delinquency did it's true of all kinds of acting out kinds of behavior it's true also of depression and of anxiety for these young people anyway the behavior, the religiosity of their peers is related to actually doing things as opposed to having good or bad outcomes it's also true as for general behavioral problems it's true for substance abuse as well this is a Norman Rockwell praying family here other people gawking so it looks like children's religion does matter it matters as far as the outcomes that you have related to the child right or at least their parents religion matters or their friends religion matters because we don't have the exact variable that we want and it looks like it's really important is how wealthy they are it's more important than a whole lot of other things this suggests especially the findings of the influence of your peers that at adolescence we start depending less on our parents who may be really important for our core beliefs and outlook on the world and more and more influenced by the people who are around us, our friends and those with whom we hang out and this suggests that all the ads about do you know where your child is and the aware and nagging parent is the best reducer of drug dependence may actually be on to something one of the questions is whether or not it's appropriate and we ought to think about kids religiosity in really restrictive terms and the American Law Institute's proposals are going to get kicked around by Don I think they have child custody provisions that say that it should be inadmissible or that the court shall not consider any of the following factors in deciding who should get child custody and look at the one down here that I've bolded you don't consider the religious practices of a parent or the child except to the minimum degree necessary to protect the child from severe and almost certain harm or to protect the child's ability to practice religion that has been a significant part of the child's life how the heck is a court going to know that especially in relation to the pervasiveness of the factors that we've discussed before I also want to look for a second at another Supreme Court case this is also a Justice Stevens opinion and it's one talking about abortion and parental notification this was a weird Minnesota statute that required that both parents be notified unless there was a judicial bypass procedure and Justice Stevens wrote it follows that the combined force of the separate interest of one parent and the minors privacy interest must outweigh the separate interest of the second parent and that's essentially maybe what's going on in the first case we talked about the new dog case where you had one parent the custodial mom plus the child who says she's a Christian and she's not weighing the interest of the non custodial parent it also follows the the whole doctrine about when you're able to engage in child custody litigation at all a standing doctrine that suggests that sometimes what's needed is the presence of one child and a parent in the jurisdiction is going to be enough to get the power of the court involved although that's stretching things a little bit here so as it was with these privacy cases I think maybe with the religion cases it holds true true also if the child identifies with a religion of one parent he or she should surely prevail against the other so these are cautions about the regressions that you saw which I'd be glad to send to anybody if they don't put all this stuff on a website somewhere the slides are kind of a snapshot they don't represent causation they represent things that occur at the same time they're not we have no way to prove that living with a step parent causes more delinquency or less happiness or something like that we know that they're associated and that's all we can tell some things that may be really important we're so small because of the number of people in the sample that we can't really say anything and so for example in black families and we've run this whole series of regressions for just black families and just asian families as well there's so few adopted kids there's zero actually adopted kids among the african-american families so you can't really tell anything at all another thing is that all of the what's called the r squared all of the proportion of things that's actually predicted by the variables we looked at are very small they generally run between 10 and 15 percent so there's a whole lot else that goes into making happiness other than the things that were being surveyed here and we haven't even scratched the surface in what we're looking at we know that but we're just reporting to you what the best we could come up with at the time okay next we have Don Browning whose PHD comes from the University of Chicago he is the Alexander Campbell Professor of Ethics and the Social Scientists Emeritus at the University of Chicago Divinity School Browning is also the first Robert W. Woodruff Visiting Professor of Interdisciplinary Religious Studies at Emory University and is a world-class scholar of practical theology and ethics he's co-director of the Center for the Study of Law and Religions Sex, Marriage and Family Project for which he has written eight books including Christian Ethics and Moral Psychologies Equality and the Family a Fundamental Practical Theology of Children Mothers and Fathers in Modern Society and American Religions and the Family How Faith Traditions Cope with Modernization and Democracy he's written numerous books and articles on the cultural theological and ethical analysis of modern psychology so welcome Professor Browning you probably got the idea that I'm something of an interdisciplinary junkie and anybody that really knows anything about my career undoubtedly is asking the question of why I am sandwiched between two legitimate professors of law talking about family within the context of family law and it is a good question I hope the presentation will illuminate that to some extent but it does raise the question what am I and for what angle am I coming at this presentation on I like to think that on Mondays and Wednesdays I call myself a practical theologian and on Tuesdays and Thursdays I call myself a theological or religious ethicist and on the weekends I go back to what I used to be for 20 years and then it was a professor of religion and psychological studies today is Thursday so it's going to be a theological ethics perspective but you'll see a little taste of these other dimensions and I'll say a couple of nice things about my colleagues here this is totally an accident I'll say a couple of negative things about some other aspects of family law and I'm not deferring to them because I'm setting close to them it I trust them it just happens to be that I have a couple of nice things to say about them Mr. Witte's had a different kind of effect on me that he has other people he functions to terminate the speech of other people on time his effect on me is to keep me going when I should have shut up on some topics a long time ago much of my early scholarly work was dedicated to analyzing cultural ethical implications of the modern psychologies and psychotherapies some of this involved reviewing and assessing what social theorist Philip Reef called the triumph of the therapeutic my studies convinced me that the models of health often projected by these modern psychologies unwittingly gave rise to norms of hedonic and non-hedonic ethical egoism they implied that being psychologically healthy entailed an implicit moral obligation to make one's own satisfactions and self-actualization central to one's life although I was interested in the broad ethical implications of the therapeutic model of health I did not anticipate that I would someday be studying the impact of the therapeutic on law it was around 1998 that I read an article by Carl Schneider arguing that family law not long ago advanced moral arguments to support its positions as pronouncements but that more now more frequently its puts forward psychological and therapeutic arguments I was slow to comprehend what a society does to heal to exercise the therapeutic a very legitimate thing to do can influence influence not only culture and ethics but even law this process of influence however is complex and works in concert with other cultural forces and social trends the individualism of western culture their fondness for what Max Weber called technical rationality and the rational choice logics of economic liberalism in fact with and reflect and feed the triumph of the therapeutic in family law today one can see the confluence of these forces in the growing dominance of two guiding principles the principle of what is called private ordering for adults and the concept of the best interest of the child children and youth the idea of private ordering applies primarily to family formation and the doctrine of the best interest of the child as I understand it applies mainly to family disillusion private ordering holds that adults know their needs and goals in their intimate family lives better than government religion or law therefore law should have the flexibility to allow follow and support the sexual and procreative arrangements that growing men and women believe are best for them the best interest of the child come into play when adult family formation decisions often guided by the principle of private ordering lead to family disillusion and makes salient the issues of child custody parental guidance residence of the child and financial support the principle of private ordering increasingly guides family law dealing with what I call the front door of family formation and the principle of best interest of the child functions more and more to guide family law at the moment of divorce the disillusion of cohabiting couples complex issues facing legal and informal families using artificial reproductive technology may be one of the best examples of this drift of legal theory can be found in the American law institutes not too long ago report designed to codify emerging trends in family law called the principles of the law of family disillusion I wonder when I first read that I wonder why it wasn't the principles of family law but it mainly has to do with codifying the entire scope of family law around the principles of disillusion my thesis is this more and more family law in both theory and practice is legally defining the front door of family formation in light of the contingencies strains and emergencies disillusion the back door of family life the triumph of the therapeutic significantly although not exclusively appears in the wonderfully positive sounding rule of the best interest of the child or to say it differently the principle of the best interest of the children functions almost exclusively at the moment of family disillusion hardly at all around the legal and moral channeling of family formation with regard to massive trends of contemporary legal theory furthermore the concept of best interest of the child often rebounds on the principle of private ordering to create even more variety and complexity in family formation all of these dynamics are one overlooked major consequence for children the growing tendency of law to channel and even exacerbate the likelihood that children will not live with and be raised by the parents who concede them although these are not the only principles guiding family law today they enjoy growing prestige they are accompanied by two additional assumptions that family law should be morally neutral and that it should be liberated from the influence of religion especially Christianity many legal historians acknowledge that Christianity has had massive influence on western family law up to the recent past although legal scholarship on this point generally goes back no further than the 18th century on the whole legal theorists today consider this influence to have been negative Boston University legal scholar Linda McLean and others have charged that Christianity is based upon faith and is therefore unable to pass the rationality test of law Christian jurisprudence is variously viewed as grounded on mystery for instance Maria V. Entocholoschia a European scholar or blind sacramental authority Henry Kraus of the University of Illinois patriarchy and rigid hierarchy our good friend Martha Feynman of this school unrealistic moral demands Richard Posner of the University of Chicago are now sitting judge and many more such characterizations contemporary laws rejection of a place that's all I'm talking about is a place for Christian jurisprudence in shaping or being in the conversation about contemporary family law is not I believe well grounded is based on a poor grasp of history and an inadequate understanding of the many dimensions of rationality found in Christian family theory law today is insufficiently aware of the multi-dimensional ways in which Christian marriage theory weaves together or has in the past woven together observations of the rhythms of nature understandings of the needs of children moral principle and indeed finally integrating metaphors of covenant and one flesh union Christian jurisprudence has over the centuries advanced an integrational view of marriage and family formation it is concentrated on the front door of family life the matter of family formation rather than the back door of family disillusion is rationality can be seen in the range, validity and mutually reinforcing character of the goods that has thought to integrate the classic statement of this integrational view of marriage can be found in St. Augustine's essay titled the goods of marriage he explicitly listed having and raising children fides faithfulness between husband and wife and sacramentum by which he meant simply covenantal commitment and permanence he discussed other goods as well such as mutual helpfulness and the channeling of sexuality these goods were integrated by two narratively elaborated metaphors I'll make quite a little bit out of that word metaphors before we're over subject to multiple commentaries in both theology and western law down through the ages one comes from Genesis 2, 24 and says a marriage is a one-flesh union the other comes from Ephesians 5, 25 and asserts that the commitments and sacrificial self-giving of marital partners should recapitulate the unbreakable covenant love of Christ for church Israel and the world the fact that the demand for sacrificial love is addressed more to the husband than the wife constituted as historians can now see a striking contrast in these early Christian scriptures to the aristocratic and hierarchical ideal of the husband and father projected by Aristotle and his influence on the civic culture of Roman Hellenism that surrounded Christianity in the early days this integration of view was elaborated at the naturalistic level the rational moral level and the symbolic metaphorical level by various later Christian writers it received as clearest and I think the most forceful articulation I'd like to say this in some liberal Protestant by the medieval Dominican Catholic Roman Catholic scholar Thomas Aquinas before Aquinas developed an explicit theology of marriage he asked a naturalistic question as to why male humans in contrast to males of other species formed families and developed long lasting relationships with the mothers of their offspring his answer was this matrimony which Aquinas defined as the male remaining with the mother infant dyad occurs at the human level because principally the long period of human infant childhood and childhood dependency Aquinas believed that when the human male comes to recognize that the fragile child is his offspring and a product of his seed flesh and substance a connection that the mother recognizes immediately for the labors of gestation and birth the human father having capacities of discernment that exceed males of other species is more inclined to assist his consort and care for the infant as he cares for his own body it's interesting to observe today that Aquinas got most of the naturalistic conditions for family formation at the human level in a way that's consistent with the bulk of evolutionary theory about family formation as we find it in that literature today but in addition to this naturalistic level of analysis which I'd say is at least a kind of rational argument Aquinas Christian theory said that marriage should be long lasting because of the vulnerabilities of both infancy and motherhood furthermore it should be a matter of friendship because both male and female enjoy the dignity of being made in the image of God and some of the dimensions of rationality that his mentor Aquinas also talked about and finally to strengthen the durability of this one flesh trinity of mother father and infant Aquinas added to these naturalistic, philosophical ethical and rational arguments the distinctively Christian or theological note that marriage should be modeled after Christ's enduring covenant relationship to church, Israel and the world notice that the more theological argument comes at the very tail end of this elaborate multidimensional argument Aquinas serves as an example of the multidimensional, integrational view of Christian marriage it is integrational in this dominant metaphors of covenant and one flesh bring together and stabilize a mutually supporting unity of sexual exchange, conception the needs of dependent infants the procrative and relational inclinations of men and women and their right to eco-respect and mutual friendship in an enduring socially sanctioned institution this view overcomes the dichotomy between adult private ordering at the front door of family formation and the situational best interest of the child at the back door of family dissolution it does this by bringing culture religion and law into a cooperative relation that promotes an integrative pathway to family formation in a short sight I believe to say the Christian jurisprudence of marriage fails the rationality test is clouded in mystery is based upon hegemonic sacramentality is incurably patriarchal and possibly demanding without more carefully examining its integrative view of matrimony and its complex synthesis of naturalistic moral and metaphorical arguments the prominence of family law today of the doctorate of private ordering means that most legal theory not all but most has given up on the integrational view of family formation the idea the law in cooperation with other parts of culture should channel the integration of adult sexual expression parenthood and the dependency needs of children into a publicly sanctioned institutional commitment private ordering gives adults the autonomy to separate the historic goods of marriage sexuality from procreation procreation from marriage parenthood from marriage and the rearing of children from the parents who conceived them this is then done in the name of a false view of the neutrality of law it reflects rather a watered-down continism the positive inequality of another democracy of all adult desires and all adult choices this ethic of adult private ordering is the lead principle shaping family law today I could give countless additional examples besides the illusion to the law of the principles of family formation it is a dog that's increasingly wagging the tail of the child however it distorts the otherwise laudable best interest principle into a situation ethic designed to make the most of difficult circumstances which adult choices present to dependent and vulnerable children a Christian integrational view of marriage directs law's attention to the front door of marriage law the law of family formation law should not dismiss this historic voice of Christianity simply because of its theological metaphors and narratives the issue is not whether any theory of marriage religious or secular contain such metaphors but rather how they relate how these metaphors relate to other levels of rationality that a particular perspective exhibits careful analysis of the leading secular legal theories reveals that they are not without their own deep metaphors that serve as faith assumptions uncritically held presumptions about how life is grounded University of Utah legal scholar Martha Erdman intentionally grounds the doctor of private ordering in the metaphor of the handshake marriage is like a handshake in her view covenant and one flesh union are out and the metaphor of the handshake should suffice to order private intimate relations in today's world of autonomous individuals one can find metaphors of molecules and individual atoms in the marriage law proposals of Stanford University law professor Lawrence Friedman deep metaphors of symbiosis and nurtures in the work of Martha Feynman free market and agonistic metaphors in the University of Chicago Richard Posner and status metaphors in Georgetown University law professor Milton Regan there is however at least one exception or more in law today to this trend in substituting alternative metaphors for the classic ones of Christian jurisprudence this is the case of Margaret Brennig from whom you've heard who adds this who has creatively blended what I call a phenomenology not a metaphysical defense of but a phenomenology of the Christian central Christian metaphors of covenant and one flesh union with a subordinate and quite rational theory of marriage and family drawn from the field of institutional economics I can recommend her work future dialogue between secular law and religion will center on charging the relationship between their respective focal rationalities and their respective deep metaphors both sides have their rationalities both sides have their faiths metaphorically articulated when this charting becomes more advanced religious perspectives will emerge as far more rational than generally perceived and allegedly secular theories will be revealed to have their own unwitting foundations in some kind of faith when this day comes religious perspectives will be more carefully consulted and so-called secular theories rendered more balanced and less dogmatic thank you our third presenter is Carl Schneider he has a JD from the University of Michigan and is the Chauncey Stillman professor of ethics, morality and the practice of law he's a professor of internal medicine at the University of Michigan he's written extensively in several fields including bioethics, professional ethics professional education family law and constitutional law he recently published with Marcia Garrison a casebook entitled law of bioethics, individual autonomy and social regulation and is the author of the practice of autonomy, patients, doctors and medical decisions professor Schneider served as a law clerk to judge Carl McAllen of the United States Court of Appeals for the District of Columbia Circuit and to Justice Potter Stewart of the United States Supreme Court welcome professor Schneider thank you I'm very apprehensive because one of the things that I learned about teaching fairly early on was not to do it after 5 o'clock in the afternoon and I have to say I am a big fan of the idea that husband and wife become one flesh but I can never forget what Congreve said they may become one flesh but marriage still leaves them two fools I am so apprehensive about this idea of teaching after 5 o'clock that I have decided not to present you with anything very formal I don't want to say that I'm following the idea that you should teach them in parables but I do have a story to tell you and it's a story that picks up very exactly after the talk that professor Browning gave and reaches in a different sort of way the kinds of problems that professor Browning was talking about I am the author of the casebook in bioethics but before that I was the co-author of a casebook in family law with Peg Brinnig and in the process of preparing for that I was trying to figure out something that would be interesting to do in the section on divorce when the law of divorce is so boring law of divorce is this if you would like a divorce you may have one that's not enough to keep the mind alive for a chapter and so I thought it would be a good thing for the students to try to think a little bit more seriously about what is after all one of the repeating features of family law that it continually must decide moral questions whether it faces them expressly as moral questions or whether it handles them in some other kind of language and so I sort of made up the case of Mr. and Mrs. Appleby of Milan, Michigan Mr. Appleby is 59 at the time when I made this story up that seemed to me quite an elderly age I now wish that I could stay 59 a little bit longer he has been married for some 30 years to Mrs. Appleby they have one child grown up and moved out of the house pretty much at Mr. Appleby's insistence Mrs. Appleby has never worked out of the house most of their friends are his friends not her friends one he is employed but never been employed in a very lucrative kind of way they have very little money one day he comes home and says I have fallen in love with a 19 year old co-worker and I want a divorce so that I can marry her and live with her and her two infant children and the question that I then asked the classes to think about was whether Mr. Appleby was morally entitled to a divorce and the answer that I got repeatedly was that he was legally entitled to a divorce and I said finally one of the classes no I teach family law I know that he is legally entitled to a divorce hell everybody is is he morally entitled to a divorce and finally the class began to ask what's that mean and I said you know morally I don't understand what that question is if you would ask me whether it was psychologically prudent of him to get a divorce I would be able to address that question but I don't know what you mean by morally and I said morally about right and wrong at which point the editor of the law review at the time raised her hand and said that would make murder a moral issue and I said that I truly hope that it was and that she would continue to think about it that way at this point of course the professor is getting quite frustrated because the real conversation that he wants to have has been sidetracked by some problem of communication and over the years I began to try to figure out why we were not communicating better than we seem to be and part of the problem here was I think that for my students who are I think quite representative of the professional upper middle class they grew up in comfortable houses in comfortable times for all of our talk about diversity they come from a quite a narrow range of of social class and let me just say at this point they're very lovable kids one of my side research interests has been in how people make decisions about legal careers and I interviewed 40 of my former students to try to get some understanding of how they had made a decision to come to law school and how they made decisions about their careers after they left law school and they were really inspiring interviews I came away thinking very highly of all of these individuals that I had talked to so that made me particularly anxious to try to figure out what was going on here I think part of the problem was that for them morality referred only to sexual morality and probably referred only to sexual morality understood in what would pejoratively be called a puritanical kind of way but I think that was only a fairly small part of it I tried to get at the question by saying forget about this question of what would be morally the right thing to do what kind of conversation should Mr. Appleby have with himself about whether he should seek a divorce or not and we came back to the therapeutic argument it was to be an argument about whether or not he would come to realize that living with a 19 year old who in your 60 is not as fully rewarding as you anticipate and while living with two infant children is a lot more horrifying than you remember the next thing they said though was it really wouldn't matter even if he talked about this issue in moral terms because morality would not constrain him and it wouldn't constrain him in a couple of senses first it wouldn't constrain him because after all he could still do anything he wanted to and no agency would stop him and it wouldn't constrain him because he would be intellectually ingenious enough to find a rationale for whatever he wanted to do and that led to I think an even more common view which was that he might well have moral ideas but those moral ideas were happenstantial they were the ideas that he happened to have been brought up with and had no more meaning beyond his own historical experience than any arbitrary fact would and it was certainly not something this the kind of moral constraints on him is certainly not something that he could discuss profitably with other people we all have our own values and those values are simply this idiosyncratic process or product of history and so I said well what would you do in his circumstances and they hewed to their belief that morality is essentially arbitrary and they said well I might not get a divorce but that's just me that's just the way that I was brought up and so I tried to probe a little further and got another kind of criticism of morality which was that it constraints and the idea that somebody somehow something somehow might be limiting your freedom seemed to them very wrong and in fact stigmatizing and punitive which was part of the problem with morality that it stigmatized people and that it was punitive punitive did not mean a rising out of a desire to punish to deter it meant that unpleasant consequences might follow for whatever kind of reason punitive was the word that they used to describe the unhappy consequences so I said what about the unhappy consequences for Mrs. Appleby we've been focusing on the unhappiness that it might cause Mr. Appleby if he restrained himself from marrying the young woman and the student said a couple of things the first thing they said was that Mrs. Appleby would be behaving wrongly they really don't mind thinking morally if you don't call it thinking morally she would be thinking wrongly if she tried to restrain him from getting a divorce and one of the things that I had said was that Mrs. Appleby was very strongly opposed to the idea of a divorce partly for religious reasons partly for economic reasons and partly for social reasons she would be socially isolated and partly because her life had become so intertwined with her husbands that she could not imagine what life without him would look like but the argument I got was that her attempt to limit him was an attempt to constrain him from doing what he was entitled to do what everybody is entitled to do and that is to find a happy life to find a life in which you can grow and become the kind of person that you believe that you ought to be and in fact a few students took that argument further and said that Mrs. Appleby herself was at fault because she had run her own life irresponsibly that she was obliged like all people to be responsible for the decisions she made and she had put herself in a position which now made her very vulnerable she had made herself dependent and dependence is not a situation that responsible people should allow themselves to slide into and here let me say parenthetically that in my work as a bioethicist I encountered that view of sickness from courts and even from patients that the horror of sickness is that it makes you dependent and dependent is a humiliating and degrading condition so Mrs. Appleby had allowed herself to fall into this humiliating and degrading condition and really should not be heard now to complain about the consequences of her decision now there were some students who felt that although you wouldn't want to say that Mr. Appleby was morally constrained he was constrained and he was constrained in a way that you might well predict which is that he had he had shaken hands he had shaken hands he had entered into a contractual relationship with Mrs. Appleby and so the question then was well okay what about the doctrine of efficient breach is that what you were planning to advance here the doctrine of efficient breach for those of you who are not law students or who went to law school before Judge Pelthier became quite so powerful the doctrine of efficient breach says you're in a contract if you can breach the contract and pay the damages to the other party to the contract that make that other party whole with you still being better off the other party is better off or at least the whole everybody in the whole situation is better off the breach against party is no worse off than you're better off and the answer was yes that it would be impossible to hold him to the contract and it would in fact be impossible for he himself to hold himself to the contract that he was in the grip of preferences that he could not control to the contract in the sense that Mrs. Appleby wanted which was him staying home whether he truly loved her or not but you could demand financial damages she he was supposed to put her in the same situation that she would have been in economically had the marriage continued and I said I constructed the hypothetical so that that can't happen he doesn't have enough money to support his household he can't possibly do that and at that point they said in that case he is simply a judgment proof defendant he can breach his contract he has a sort of continuing duty to pay but if he cannot fulfill the duty that cannot stop him from seeking his freedom now I think there is a very complicated set of things going on here that may give us some insight into some of the very complicated things that are going on in family law how much time do I have ten minutes okay I'm sufficiently German to believe that the things should run on time and that the best way to be sure that you end on time is simply to stop when the time elapses and that's what I plan to do in the meantime as Professor Browning said there has been quite a large change in the way that family law has talked about the problems that it faces the language which the law of the family uses is decreasingly the language of morality and that's happened in a variety of ways but before I explain those let me rush to say that I am not suggesting at this point that family law has necessarily become less moral and I am not suggesting that you cannot find moral justifications for almost all the positions that the law has adopted and almost all the positions that commentators about the law advance I'm talking about the language that the law uses and that language has changed a lot and by the law I mean the legal institutions that have to announce law and make legal decisions let me give you a couple of examples here is no fault divorce it used to be that if you wanted to divorce you had to go to a court and you had to say I made a promise and I have been morally relieved of that promise because of something for which I am not responsible generally the moral fault of my partner and then the court had to think about whether or not that was a sufficient moral justification now of course generalizing hugely divorce is available essentially on the demand of one party and any thought about the moral justification for the divorce must be undertaken by the plaintiff for the petitioner seeking the divorce similarly in a lot of the problems that surround the divorce like child custody the division of marital property decision whether to grant alimony there used to be a fairly large moral component in many ways in many of these areas and increasingly there are attempts to find ways of deciding these kinds of cases without talking about moral issues the child custody area is an excellent example of that and one of the important ways in which this has happened is that courts have looked at experts in child welfare psychologists, psychiatrists to tell them what would be best for the child so that the decision becomes a technical question about what is therapeutically best for the child the court listens to the experts and chooses the expert that seems to be making the most sense there's another kind of example of this change in moral language that is exemplified by the opinion in Roe vs. Wade which I will briefly describe to you so you have a somewhat more accurate sense of what it did with the moral question that agitates people about abortion which is the moral status of the fetus and the way in which the situation in which the woman finds herself should be thought of morally before an abortion is sought the court starts off in a very strange kind of way the opinion is very important before Roe vs. Wade essentially what you had in relatively modern law was really a couple of two or three contraception cases the last of which was based on an equal protection argument not an argument about what your rights are the court says very vaguely there are a lot of places where you might find a right to make this kind of decision and we don't really have to decide what it is but and I'm quoting almost verbatim here whatever it is, whatever the source is the right is big enough to encompass the woman's choice of whether to have an abortion the court stops then it does not try to explain more why that kind of choice is a choice that endows you with specially strong constitutional rights the only additional thing it does in talking about the origin of the right is to say if the woman didn't have this right she would suffer in lots of kinds of ways well that's not really an explanation because we suffer in all kinds of ways from all kinds of law without thinking that the fact that there are detriments gives us a right to resist the law what was particularly interesting about the detriments was that they were therapeutic kinds of detriments they were either physical kinds of detriments or psychological kinds of detriments the woman the court goes on to say this is Justice Blackman the woman makes these decisions in consultation with her physician suggesting once again this is a kind of technical problem and in fact the court actually expressly says at one point that the physician will decide in consultation with the patient whether the abortion is a good idea or not the court having finished establishing to its satisfaction that there was a right to make this decision then presumably was going to talk about the state interest in the fetal life or whatever it is and the court says it's a really hard question what the moral status of the fetus is and people disagree about it a lot let's think about this moral status of the fetus and they do it by asking whether or not the framers of the constitution supposed that the fetus was a person within the meaning of that word in the constitution and after an extremely laborious investigation of one of the emoluments clause the apportionment clause the court concluded that the framers never had fetuses in mind when they wrote the constitution the court then said Texas may not by adopting one definition of life preclude the woman from exercising her right but it never said why so the moral issue that has aroused so much anxiety after Roe vs. Wade was simply never addressed by the court the next thing that happened in this story essentially was Casey the case in which the court looked as though it might over Roe vs. Wade and didn't and the influential opinion in Casey starts off by saying liberty finds no refuge in a jurisprudence of doubt and it harshly scolded people who had not acquiesced in the opinion because the Supreme Court had spoken and once the Supreme Court speaks we should stop criticizing and stop causing social trouble and go along with the court's decision particularly when the court has told you so often that that's what you're supposed to do so I think part of what was going on in that decision was that the justices lived in a different world from a lot of the people who have been upset by the decision. They lived in a world in which the moral status of the fetus had not been a difficult question and I think they were quite astonished to find the kind of reaction through Roe vs. Wade that they got and that they were astonished because their moral vision was such a limited one and that is I think more generally a problem with the tendency to avoid thinking about problems and talking about problems in moral terms the people the law regulates the husbands and the wives who are getting divorced the husbands and the wives who are getting married do in important ways think about their relations in moral terms. They expect that the law which they don't really know will also be talking in those kinds of terms when they go to the court on divorce they expect to get justice and they expect to have their relations analyzed in the moral terms in which they're thinking about them. There's some quite interesting empirical information about people who practice divorce law who have a terrible time because the clients keep saying you don't understand how unfair this all was and the lawyers keep saying if we keep talking about unfairness the bill will run up and the court will never listen to anything that you're saying. So there becomes a kind of disjuncture between what the law seeks to accomplish and what people expected to that makes it very hard for them to see each for the people and the law to see each other very clearly. Now I must be running out of time so let me say the last thing here which is the the source for an awful lot of the moral ideas in traditional American family law obviously is religion. The question one might ask is can we go back to religion in order to replenish the supply and I think that one could be pessimistic for a couple of reasons. First, the kind of people who write AOI reports tend to be vehemently hostile to the law. I was at a conference once and a classmate of mine came up to me a classmate who teaches family law and before she said hello hi Carl or anything like that she said do you want to know why I'm not adopting your casebook and I said nothing because I was so taken aback at this approach and she said it's because you included the marriage ceremony and that religion has no place in this casebook. I'd included the marriage ceremony because it's the most influential statement on the understanding of marriage in the United States to her it was a religious document and religious documents did not belong in discussions about family law. The other problem though is that I wonder what you get when you go to religion when I talk to people who counsel young couples getting married what they counsel them about is the same kinds of therapeutic things that law talks about and my students talk about the question that I would love to have you answer because you're more knowledgeable than I is whether if you actually go to American churches today whether you're going to get a significantly different kind of approach to these problems from the kind that you get from the law. Thank you. Well you've heard three very stimulating presentations and we have time for one, two, maybe three questions so if you are interested in asking one please feel free to raise your hand and I will call on you. There's the microphone. Yes. Dr. Schneider, thank you for that opening. I'm one of the few non-academic people here. I'm a practicing lawyer but my most important roles are that I am mother of two daughters and that I teach Sunday school on a regular basis to kids at a church actually here on Emory Campus. On Sunday I went to see the Dalai Lama on Emory Campus and he had he talked about affection and the lack of human affection and maybe your colleague could have been a little more affection towards you but he also used the word nipple so now that I've said it and he said it what I'm going to say may be shocking I may get bleeped but here it is when my daughter was young she like most three or four year olds would go around and she would say things like boys have penises and girls have vaginas and kids know that what makes a dad a dad is anatomy and what makes mom a mom is an anatomy for example the kids in my Sunday school class their moms are just as likely to be doctors as their dads are they have fathers who stay home and pick them up from school who do all the traditional nurturing things and yet we attend religious institutions all the time where the reference to the holy one is in the male and a child a wise child may come to the conclusion that God must have a penis because refer to God all the time as father instead of mother my question to the panel is does this if the religious institutions could catch up with the three and four year olds who realize that God is neither male nor female could that reinvigorate perhaps the moral underpinnings for the family families exist I think is a large part for the nurturing and preservation of our children and I think all religious traditions teach us that protection of the vulnerable especially children is something that the almighty one calls us to do so there it is I said it it's shocking thank you does someone from the panel want to address this Don that's right I think we've been struggling for a good part of the last 60's 70 years in many parts of religion to be able to get beyond simplistic gender relationships when talking about God that probably is a conversation and a perspective that can proceed more successfully when children are older but I'm not at all sure that the conversation about how to talk about God in terms of gender will solve or should solve determined references to male and female at a more approximate level the one thing I think you're absolutely right about is that the massive weight of not only Judaism and Christianity but the other main religions of the world have tended to conceptualize marriage as a institution designed to handle and regularize the vulnerabilities and one of the things that tends to happen when people get married and that is a child is born now it doesn't mean it always happened it doesn't mean that it always happens with older people but the weight of the institution was very much centered around that and it really was brought home to me when John Witte and I and Christian Green who is in the audience someplace probably took time out to edit a book called Sex Marriage and Family in the World of Religions where we brought together the main documents that has shaped all six of the main religions of the world Judaism, Christianity, Islam, Hinduism family continuity and the cycle of the generations and what marriage contributed to that was a massive preoccupation not just the west not just Christianity not just Judaism in fact you can build a case that the two most ambiguous religions with regard to this importance of marriage with regard to family formation was Christianity and Buddhism but careful analyses indicate that even they who had a more complicated language was as family oriented and generation continuity oriented as Judaism, Islam Confucianism Hinduism were there it's very strong so I'm not sure how the two levels of conversation gender of God and family formation male and female are exactly the same conversation okay we have the question here this question first occurred to me with Professor Browning's discussion of marriage in such explicitly Christian terms but also I think Professor Schneider might be able to comment on this more particularly about the law given the law's requirement that it that it govern a people of diverse moral visions not just diverse religious practice but diverse moral visions that suggest then in our culture that we provide that order in a way notwithstanding what has just been characterized the immense weight of Christianity how do you govern these intimate and also very moral matters in a way that equally protects all citizens just to kind of remind you again I was not saying that Christian traditions should dictate legal marriage and family I'm just saying it has in the past traditions and probably should be in the conversation today and the main way to my argument is that almost all traditions and certainly Christianity had a focus and a gestalt just because it's Christian it doesn't mean that it's non-rational through and through looking at Christian arguments indicates a high degree and multi-dimensional levels of rationality anybody who's religious and wants to contribute to family law today need to be able to bring the more rational aspects of their argument into the center but they also need to confess that their rational foci will be shaped in some way by the metaphorical surround and they're not the only ones secular law will have the same problem because their thought floats in a sea of metaphors as well so they all have that obligation of tracing the relationship between our surrounding metaphors and our focal rationalities thank you I was trying partly to suggest that the ability of lawmaking institutions to speak intelligently when moral issues come their way depends on the kinds of resources for moral discussion that exist in this society and that one possible source of them is the religions of all kinds the question you ask is essentially the question of whether an intelligent workable family law is possible my favorite comment on this comes from my favorite English judge James Fitz James Stephen to try to regulate the internal affairs of a family the relations of love or friendship or many other things of the same sort by law or by the coercion of public opinion is like trying to pull an eyelash out of a man's eye with a pair of tongs they may put out the eye but they will never get hold of the eyelash but the trouble is you can't avoid doing it you can't avoid legally regulating the family because people are going to behave in ways that put them in conflict with each other about the kinds of things like property that the law regulates one last question you're going to be excited because I didn't have a question I just had a compliment my name is Tanya Stewart I'm a family lawyer yay not a theologian really but I am a minister professor Snyder I just wanted to thank you from all the family lawyers here because it is to the academics in the room it is traumatic to guide people through a divorce when all they want to say is but that's wrong but he took it but he cheated but she lied but it's wrong it's wrong it's wrong and I have to tell them that honestly judge doesn't really care I can't put up a two hour argument about the adultery it's really about what's left in the 401k and no I can't prove that they stole that money so no I can't really so it's very very frustrating and it was just very nice to be here and to hear all of the academic ideas and to hear that you you recognize that it would be very nice for you guys to produce some kind of paper that we could hand to our clients to explain to them that it's not just us because they just think that we're crappy lawyers and they just wander off to another lawyer that says oh the affair we're getting all the stuff don't worry about it so thank you for doing that if you want to research that at any point I'll pass it out thank you for your contributions a rich discussion and an ability to keep everybody awake at a late hour John Whitty we have not exhausted any of the topics that we've taken up in our panels today but I think we've exhausted each other with this wonderful wonderful intellectual feast I hope that you have been satisfied I hope that you will take away from these panel discussions a rich body of ideas that you'll continue to discuss over dinner and drinks in the course of the evening I hope that you will come back at 7 30 this evening for our final panel with Stephen Carter from Yale Chief Justice of Georgia Leah Ward Sears and Dr. Enola Aird on Law, Religion and the Future of the African American Family if you can't come this evening I hope you'll come back tomorrow morning first thing where we'll hear about the internal religious legal systems that are out there in Judaism Christianity and Islam it's been a wonderful day I want to say two logistical things one those of you that are returning to the Emory Conference Center and then I've instructed that there are shuttle vans that will take you back as soon as our session ends and they'll be rotating over the next half hour they'll also be returning between 7 and 7 30 for those of you who wish to return likewise the various shuttle vans that are going to the different parking decks made available to you as described in our center website are also immediately outside and secondly for those of you looking for restaurant let me commend to you the little list of local easy walking distance restaurants on the inside cover of your program that you have and there are a number of them within 150 yards of walking and I commend a number of those to you none of them is great I have to tell you but all of them are more than adequate it's been a wonderful day thank you so very much and let's thank our panel one more time