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Law and the Crisis in the Family
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18148 |
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EDITORIAL
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| Issue
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11 / 1990 |
809 Words |
| Author
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Morton A. Kaplan
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The developing crisis in the family is the subject of this month's symposium in the Currents in Modern Thought section. Plato's austere concept of family, at least as presented in The Republic, severely devalues the human need for close nonutilitarian human relationships that provide a foundation for mutual parental support and the raising of children. It is probably no accident that children brought up in kibbutzim in Israel lacked strong moral character. The family is a necessity for the development of a desirable human personality, a necessity that is imbedded in our evolutionary development.
That these claims are as surely correct as empirical statements can be, does not mean that the nuclear heterosexual family is the only form of relationship that can satisfy these needs. Various forms of polyandry and polygamy have provided satisfactory matrices for human development in the past. The Torah recognized polygamous relationships. And the Catholic Church authorized polygamous unions after the devastation of the male population in Peru in the Gran Chaco War.
If the Supreme Court were to take its newly generalized doctrine of privacy seriously, it might argue that the laws mandating monogamous unions are unconstitutional. From the standpoint of the abstract way in which the court considers cases, that might be a better claim than that offered in Roe us. Wade for the "right" to abortion. No direct interest is threatened by non-monogamous unions, whereas it is difficult to argue that the fetus is without rights even if one argues that the mother's rights are stronger.
However, so much the worse for a generalized doctrine of privacy. An invalidation of the laws upholding monogamy would have devastating consequences. Ours is a democratic society, and its stability would be threatened if its laws legitimated inequalities in family formation and other crucial areas of life.
I am not an equalitarian as such. I believe we have a right to profit even from accidental favorable qualities such as beauty or intelligence. However, even if a rich man can influence more votes than a poor man can, his vote must be worth no more inside the polling booth. Even if he can hire a better lawyer than a poor man can, still the procedural and substantive rules of law must not distinguish between them.
Even if, on the average, rich men or women may be able, de facto, to acquire more mates (and more beautiful or handsome ones too) than can poor people, the law cannot legitimate such de facto unions without creating a cancer in the body politic. Legally monogamous unions, regardless of de facto more complex forms of union, are the irreducible requirement of democratic political systems.
The rule of privacy is beginning to be used by some courts to protect nonheterosexual unions. There may be some limits within which these protections can be justified. Whether deviance with respect to sexual partners is produced by mistakes in early brain chemistry, as many now believe, or by early social experience, we should no more wish to make life harsh for those who deviate from sexual norms than for those who deviate from physical norms, for example, those suffering from epilepsy or multiple sclerosis.
Although it is possible for some nonheterosexual
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