GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2007

Status

Accepted

Abstract

The "culture wars," as they play out in high profile Supreme Court decisions and legislative fights over abortion and same-sex marriage, are first and foremost about family values. Central to these differences - and the focus of the article - is the fact that different families in different parts of the country are leading different lives. The one clear, organizing principle that distinguishes the two systems: age of family formation. The defining characteristic of what we term the "new middle class morality" is delay in family formation until the late twenties or early thirties. This new morality, which correlates more closely to blue state demographic patterns, affects understandings about premarital sexuality, use of contraception and abortion, the connection between marriage and childrearing, gender relationships, and the incidence of divorce (those who marry at younger ages are less likely to stay together). By contrast, the red states, with the Republican presidential vote in 2004 corresponding to the intensity of concern over "moral values," affirm more traditional understandings that celebrate the unity of sex, marriage and procreation. Driven in part by religious teachings about sin and guilt, they emphasize abstinence, and see divorce and single parenthood as moral failings. While blue families have prospered, red families are in crisis on their own terms - red states have the nation's highest teen pregnancy and divorce rates, and the growing separation between the beginning of sexual activity and marriage makes abstinence increasingly untenable. The article argues that the moral and symbolic conflicts between the two systems underlie the intensity of the increasing partisanship in U.S. politics which, in turn, may undermine the legitimacy of the judicial role. Cultural anxiety about changing family patterns combined with the strategic exploitation of these concerns for partisan advantage makes family issues an increasingly salient part of the political landscape. This poses challenges to the judicial role in resolving not only hot button issues such as abortion, but more prosaic individual family law cases. The article then links the regional differences to legal outcomes, examining the laws addressing parental involvement in teen abortion decisions, same-sex marriage propositions, and the role of non-marital cohabitation in custody decisions. The most striking findings, however, address the form of legal decision-making. Blue states are not just less likely to mandate parental involvement in abortion decisions; their courts are also more likely to issue nuanced decisions that make parental involvement laws workable. On more divisive issues, however, appellate courts become much less willing to engage the issues at all, deferring instead to legislatures or lower court findings of fact. The level of partisan intensity in the background accordingly frames not just legal outcomes, but the judicial role. Finally, the article concludes that differences between red family and blue family systems are not frozen in place, but in transition, albeit at different speeds, from an older traditional (or red state) model to a newer system likely to reflect the blue states' later age of family formation. Family courts, whether they wish to be or not, are on the front lines of the culture wars. The legitimacy of their role depends on judicial ability to guide, diffuse, and manage cultural conflict, a role which is increasingly threatened by the partisan identification of cultural conflict.

GW Paper Series

GWU Legal Studies Research Paper No. 343; GWU Law School Public Law Research Paper No. 343

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