Helen Alvaré and Mary Anne Case, "Is there a place in family law for the notion of complementarity between men and women?"
Helen Alvaré is a Professor of Law at George Mason University School of Law, where she teaches Family Law, Law and Religion, and Property Law. She publishes on matters concerning marriage, parenting, non-marital households, and the First Amendment religion clauses. She is faculty advisor to the law school’s Civil Rights Law Journal, and the Latino/a Law Student Association, a consultor for the Pontifical Council of the Laity (Vatican City), an advisor to the U.S. Conference of Catholic Bishops (Washington, D.C.), founder of WomenSpeakforThemselves.com, and an ABC news consultant. She cooperates with the Permanent Observer Mission of the Holy See to the United Nations as a speaker and a delegate to various United Nations conferences concerning women and the family.
In addition to her books, and her publications in law reviews and other academic journals, Professor Alvaré publishes regularly in news outlets including the New York Times, the Washington Post, the Huffington Post, and USA Today. She also speaks at academic and professional conferences in the United States, Europe, Latin America and Australia.
Prior to joining the faculty of George Mason, Professor Alvaré taught at the Columbus School of Law at the Catholic University of America; represented the U.S. Conference of Catholic Bishops before legislative bodies, academic audiences and the media; and was a litigation attorney for the Philadelphia law firm of Stradley, Ronon, Stevens & Young.
Professor Alvaré received her law degree from Cornell University School of Law and her master’s degree in Systematic Theology from the Catholic University of America.
A graduate of Yale College and the Harvard Law School, Mary Anne Case studied at the University of Munich; litigated for Paul, Weiss, Rifkind, Wharton and Garrison in New York; and was the Class of 1966 Research Professor of Law at the University of Virginia before joining the Law School faculty. She was a Visiting Professor of Law at the Law School in autumn of 1998 and at New York University during the 1996–97 academic year and the spring of 1999. In the spring of 2004, she was Bosch Public Policy Fellow at the American Academy in Berlin. For the 2006–07 academic year she was the Crane Fellow in Law and Public Affairs at Princeton University. Among the subjects she teaches are feminist jurisprudence, constitutional law, European legal systems, marriage, and regulation of sexuality. While her diverse research interests include German contract law and the First Amendment, her scholarship to date has concentrated on the regulation of sex, gender, and sexuality, and on the early history of feminism.
Presented on April 29, 2015, by the Federalist Society.
Speaker 1 (00:00:02):
This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Speaker 1 (00:00:20):
First of all, I would like to introduce to you professor Helen Alvare. Professor Alvare is a professor of law at the George Mason University Antonin Scalia Law School.
Helen Alvare (00:00:33):
You know, Justice Scalia's family called me and said they'd rather it was ASSOL, but because that acronym went viral, we had to retract it. So, just on the record, his family would prefer to have sort of the acronym. There you have it.
Speaker 1 (00:00:51):
Professor Alvare teaches family law, law and religion, and property law at George Mason. She also cooperates with the-- I'm going to have to read this to make sure I get it right-- cooperates with the permanent observer mission of the Holy Seat to the United Nations and often serves as a speaker and delegate to United Nations conferences concerning women and children. She received her JD from Cornell University and her Master's in Systematic Theology from the Catholic University of America. Professor Buss, as you all know is from our own University of Chicago. She teaches family law, civil procedure, and evidence. Her research interests include children's and parent's rights and the legal system's allocation of responsibility for children's development among parent, child, and state. An interesting fact is she clerked for Justice Harry Blackmun of the United States Supreme court. She received her BA from Yale University and her JD from Yale Law School. Please join me in welcoming both of our speakers.
Helen Alvare (00:02:02):
Thank you for coming today. And I want to thank Professor Buss who is a renowned expert in this area of children's and parent's rights and allocation between the state and others. I'm writing a book and it's very difficult to summarize briefly, but I'm going to do my best. And I'm really looking forward to your feedback since I'm still very much in process. So I'm working on a book concerning one particular aspect of children's wellbeing, which is their family structure, specifically non-marital parenting. I'm asking myself the question, why does the federal government appear to valorize what-- I'm going to summarize with a very broad brush as sexual expression, indifferent to whether or not there is stability in the partner's relationship and without reference to the wellbeing of children who are created by heterosexual sexual expression. Why do they do this in an environment where they acknowledge that the state of special protection to children as vulnerable persons, where the research about the relationship between family structure and children's wellbeing is increasingly robust and where we really have a tremendous amount of data about their efforts to respond to the situation of children?
Helen Alvare (00:03:28):
Twofold types of efforts, one using a language of Professor Don Browning who taught here at Chicago for many, many years before he passed away several years ago. He refers to efforts to help children at the back door. That is, we let adults make their choices at the front door and then we try and take care of the consequences for children after the fact. So the federal government has, if I even just listed them, which I try to in the book, the numbers of programs to attempt to help children who experienced difficulties related to family structure and associated factors, they would just be pages of just the names of the programs. There's just an extraordinary amount, but we know that those programs are either having a little effect for the money or not much at all and we know that their cost is extraordinary.
Helen Alvare (00:04:20):
And people like me and others who want to see these programs in action will still have to acknowledge that it would be very hard to find the political will to spend what it would really take. And it hasn't happened yet. They also know that there is a second kind of effort, which is to paint with a broad brush is basically birth control, is not succeeding as they wish. Since the advent of these major programs in the 1970s, the rates of unintended pregnancies have actually gone up, not down from 34 to 51%. And the rates of out of wedlock births have gone from, you know, less than 18%, about 41%. So, I'm asking why in the presence of these factors they are taking the position that they do. So here's how I'm going to treat this issue.
Helen Alvare (00:05:14):
I'm going to at first talk about the evidence that they are say, valorizing, sexual expression indifferent to the stability of relationships or children. Then I'm gonna discuss, very briefly, the relationship between non-marital parenting and child wellbeing. The literature on that is overwhelming, and then going to have a critique of the way the federal government treats sexual expression. Not because they are precisely causal, right? They are part of the ambient environment on this question, but because they are not in their treatment, giving ethical priority to children. This is a huge missed opportunity for them to assist. I think they're recklessly indifferent to the way that an undifferentiated message is actually received by people in the environments in which they find themselves. Most particularly, I think poor people and women who have different preferences, constraints, and incentives. Vis a vis sex, marriage, and childbearing are disadvantaged by this undifferentiated message.
Helen Alvare (00:06:18):
And then finally, I'm just going to bring up some of my thoughts about moving forward to improve the situation. Regarding the valorization of sexual expression in the way I've described, a tiny bit of context will help understand their position now more distinctly. You know, prior to the 1970s, the government along with a whole variety of cultural institutions, civil society, families, churches, did valorize maintaining a link between sex and marriage and children, really for the benefit of children. And let's be frank, because the government would rather the children are taken care of from private versus public sources. But there was finally an overturning of the laws that they used in service of this. Laws against cohabitation, anti fornication laws, adultery, and then laws on illegitimacy which fell away, or in the case of illegitimacy, were rightly overturned as a matter of Constitutional law in 1970s. I'll never forget somebody wandering into my office, because I write a lot about non-marital parenting. I have a nonprofit that sends people into working poor communities to try and build community and assist single moms and cohabiting couples and a lot of multi-partner fertility households to piece their lives back together, by piecing sex and marriage and children back together in theirs and their kids' future. So I've been concerned with this for awhile and I'll never forget a colleague walking into my office 17 years ago when I started teaching and saying, "you know, whatever replaced illegitimacy as the state's interest in linking these things together for the benefit of children?" And the answer is really nothing. And instead I contend that the government moved in the opposite direction. I don't have time.
Helen Alvare (00:08:15):
In the book, this is the longest chapter, but beginning around 1972, Eisenstadt versus Baird and in a series of decisions that facilitated on linking sex for marriage and kids, you have Eisenstadt which extends the right of contraception to single persons saying that decisions about childbearing are not something that the couple makes, but that they are individual decisions. Roe versus Wade, relying on Eisenstadt talks about the right of abortion as the right of a woman. In particular, when they list-- right after they announced the right, when they announced the hardships that not giving a right to abortion would impose on a woman, they think that she needs to be free from stigma, from psychological unhappiness of single parenting, from the financial and social struggles of single parenting. Casey in 1992 notes in particular that abortion as a backup to contraception when it fails, secures a woman's ability to engage in-- and this is the courts euphemism for sex: unplanned activity, they call it-- all of which, the unplanned activity and her right to contraception and abortion is essential to her (and they use different words throughout the cases) dignity, personhood, self identity, shaping of her own universe, equality, freedom. While none of these cases were explicit holdings of a right to sexual expression without children and indifferent to marriage, they were interpreted exactly that way by Lawrence versus Texas, the case that that struck down Texas' law criminalizing homosexual sexual intercourse. In Lawrence, they cited Casey Rowe, Eisenstadt, et cetera, for the principle that single people's decisions about quote and another euphemism for sex-- the intimacies of physical relationships which are non procreative-- has constitutional protection. So finally, they just say all the cases that say, this is what we're protecting. The same sex marriage cases, even though they're not about heterosexual intercourse, they take up and confirm this theme. In Windsor, because of course there was no precedent in same sex marriage cases to rely on, the Supreme court emphasizes instead the prior contraception and abortion cases and characterizes them as supporting a constitutional right to quote, make sexual choices.
Helen Alvare (00:10:45):
And then it defines marriage as a right to make sexual choices and to make a commitment between two people. Windsor is kind of funny because it's about seven pages saying marriage is a state versus a federal thing and then it says marriage is. And it bases it on the little paragraph out of Justice Kennedy's Lawrence opinion about sexual intimacy plus commitment. Then in Obergefell, the court's vote of "fundamental Liberty of intimate choices that defines personal identity and beliefs." So again, speaking specifically of non procreative sex saying, and citing Lawrence and Casey, et cetera, as valorizing this for the individual. Of course, both cases Windsor and Obergefell, in their conclusion that the state is not and in fact, can't be any differently interested in sexual expression that can versus cannot procreate children also sounds in the valorization of sexual expression without reference to children or the stability of the couple. Other branches, and here I'll run through this for purposes of time, quickly, most particularly executive branch, interestingly, not the legislative branch, maybe the one that has to be most responsive to the public, but the judicial and executive branches are the ones that I ended up focusing on. The Health and Human Services (HHS) mandate in the briefs, in the many lawsuits, a hundred lawsuits against it. In the public expressions by the administration, by Kathleen Sebelius as head of HHS at the time. If you go read their briefs, and there's many many cases, you will see that they link explicitly the ability of a woman, no matter single or married, to have a sexual life free of the possibility of children of central to her dignity, personhood, and freedom.
Helen Alvare (00:12:36):
You may remember Kathleen Sebelius' extraordinary statement at a national abortion rights action fundraiser that to oppose funding or supporting free contraception for women and ban abortion is to be waging a war on women. The tying of it to the very central human freedom and dignity. And I might add to that but if you look at the fact that the Supreme Court inserted this right into substantive due process, which is of course the place where the court puts rights that it says are rights without which we can't conceive that we're free. Rights that are just part of our history and tradition as a democracy. That too puts an extra emphasis on on the centrality of this right. In addition to their talk of language of self identity and freedom and so forth. In the Department of Justice's language in the lawsuits supporting legal abortion and the contraception mandate from the Affordable Care Act, you see similar language, you see it in the president's rhetoric. It was very, very heated.
Helen Alvare (00:13:46):
In the president's reelection bid-- President Obama's reelection bid-- the link between women's ability to define themselves as human beings with dignity and equality and freedom and access to free contraception. Also the choice of spokespeople, Sandra flock, Lena Dunham, who expressed this very vociferously during the campaign and at the DNC. You can go and look at the Health and Human Service website's teen pregnancy prevention programs, their fact sheets on what is sex and what is the right to sexual enjoyment. It is all about consent and self definition. You can see this language in their grant proposals for teen pregnancy prevention programs. Let me rush on here. Family structure evidence is the next area. The evidence is quite robust at this time, that family structure, while certainly not the only factor affecting children's wellbeing, does have important effects in the short and the long term on a variety of factors: emotional, educational, future employment, income.
Helen Alvare (00:15:01):
We know that income in a single parent household is closely related as well, but even if you control for income, even if you control for the parents' education, family structure still exerts its effect. Sarah McClanahan at Princeton is perhaps the most and well respected scholar on this subject. You have a scholar, I'm not sure if she's still here at UChicago, but Susan Mayer in economics, I don't know if she's still here who wrote a book "What Money Can't Buy," who talks about separating out the economic factors and still finding a risk posed by single parenthood for children. We know more than ever about the mechanisms of this risk. The fact that when a child is born outside of marriage, there is very, very likely to be changing partners in the house. In fact, the instability of the adults in the household is now being spoken of as perhaps the most significant factor.
Helen Alvare (00:16:02):
We also know that father absence is associated particularly with problematic outcomes for boys. Sandra McClanahan has written a great deal on that as well. And there's really interesting new studies, I'll get to that in a minute, about that. We also know that the word exchange, the number of words exchange and the stimulation deficit from the lack of a second parent in the household. The most important book on this, the Hart Risley book "Meaningful Differences in the Everyday Experience of Young American Children" estimates that in a given year, there will be an 8 million word deficit between a household that has two parents and a household that has one. And the kinds of interactions and questions, the stress level, the time for mutual support, all of these have been cited as related to the child's outcome.
Helen Alvare (00:16:55):
Also, we have new evidence from the fields of neuroplasticity and epigenetics about what James Heckman here at Chicago calls "skills beget skills," but if the skills aren't there when the child is terribly young, there's less of a foundation to build on. We have now also evidence that, and this is where I think we might have a will to do something about this, that the gap in family structure is one of the largest factors of the gap we're seeing between the rich and the poor, between races, and between boys and girls. There's the most interesting studies of this year, Raj Chetty at Harvard showing that boys and girls with identical upbringings and single parent households, same mother, brother, and sister, same apgar score, same prenatal care, same household, same schools, that the boys have fallen behind by age five in a way that nothing that is so far proposed as a program has caught them up.
Helen Alvare (00:17:56):
And we can talk about why that is, there's many thoughts. So what should be, in light of this, the federal government's response? Well, I would say that, you know, their current approach is very problematic at the very least because they're overlooking the opportunity to assist children who are more vulnerable. Obviously the federal government's responses and all there is, I'm just expressing surprise that they're saying what they're saying in light of what we know. They are not recognizing the ethical priority of children, which they claim they do, but they're not, here. They are also at this point, the recipient of an enormous amount of data and the Obama administration has been really, really good at HHS for the most part in using evidence based programs and giving you an honest evaluation of which ones work and which ones don't.
Helen Alvare (00:18:50):
But they're not addressing the fact that we know that family structure at birth is a very important factor. And they're not responding to that evidence and I think with that knowledge comes responsibility. The value they're promoting over the value of children's wellbeing, which is parents' sexual freedom is not even one. If you look at again, UChicago has a lot of amazing research, the most definitive sex research ever done in 1994, the sex social survey by Michael and Laumann which is still considered the gold standard. They seem to be overvaluing adult sexual expression in terms of the number of partners they think people want, or in particular, the lack of commitment. Both men and women, but women in particular, really value sex associated more with the relationship that is ongoing. Women, more strongly, and the data on that is pretty uncontroverted at this point, it's international. But both sexes don't actually value just sexual expression indifferent to the stability of the relationship, the way the government seems to speak.
Helen Alvare (00:19:59):
The government needs to recognize, and for time, I won't go into this here, but their present programs, the backdoor programs are just not working very well. They are too late. You'd have to start with children at a very tiny age. And they are also just not seeming, as David Wright bar at the Brookings Institute puts it, they just don't seem to be able to create the interplay of factors that's present in the inner relationship of stable parents in the household. The birth control programs, I can best sum up where they stand right now when the NIH put out a recent request for proposals saying "we need to ditch all present birth control and come up with something new. Women don't like what we have, it fails in 9% to 30% of instances, they switch 40% methods every year, women who smoke and who are obese can't use it and that's a large percentage of the public.
Helen Alvare (00:20:46):
It's been associated with depression most recently, and we need to come up with some new forms. And it turns out, it's not working very well. You actually have more unintended pregnancy and out of wedlock birth now than you did. So on a large scale, it just doesn't seem to be enough, we need something in addition. Another factor that I think is a critique of them is that they are sending this message out undifferentiated to the whole population. When in fact, just take an example, we know that poor women, with whom the government has a tremendous amount of contact, have different preferences, constraints, and incentives. They do not have enough men in their communities who they can marry stably. There's more crime, there's less employment, there's less possibility for a stable marriage. But they really wish to have children. And if you look at Edin and Kefalas' landmark work on this, "Promises I Can Keep: Why Poor Women Put Motherhood Before Marriage," they want the children, so they will have the children and they don't have the opportunity cost of giving up some marvelous job or educational degree in the future, that cost isn't there. And so an undifferentiated message of sexual expression in that community doesn't go very well.
Helen Alvare (00:22:01):
Finally, my proposals on this, I understand why the government wanted to do what it was doing to overcome the discussion about sex that was very repressive and wasn't even healthy. They didn't want to criticize out of wedlock families and didn't want to have classism or racism implied in that criticism. They wanted to overcome the double standard for purposes of feminism and wanted to overcome pervasive discrimination against LGBT persons. But it is possible to affirm the goals of equality while actually moving further to assist children. They need to first do no harm. They need, even if they continue doing what they're doing, to put in any program they have, the necessity of thinking about the wellbeing of children and the stability of the couple who has the sexual relationship. They can do it under the rhetoric of public health, evidence-based programs, anti-poverty, women's preferences, child wellbeing. In particular today, and coming two days after the Trump surprise, when the news is full of a discussion about how the haves and the have nots are at war in the United States. If the chief marker of income and wealth disparities between the working class and the poor versus the educated is family structure, then it is something that should be attended to alongside a raft of other policies, including things that most particularly raise income levels and opportunity costs for having an out of wedlock child.
Helen Alvare (00:23:40):
So whether it is education, jobs programs, jobs, jobs, jobs, however we do that, more income coming into those households, whether we experiment with much higher minimum wage or even the universal basic income, which I know economists are fighting over, we have got to get more money into low income households somehow. And if we can't do it by jobs, we're going to have to think of something else. Apprenticeships, training, the kind of stuff that James Heckman here at Chicago talks about. We need to evaluate policies that we have, tax and others, through a family lens, not through the lens of the individual. To conclude then, I mean, individualism as our national sort of ethic or religion, if you ever read the book "Habits of the Heart," it's very much a part of that theme. You know, maybe we could get away with that when the rest of the ambient culture encouraged people to put their children first and to be responsible as adults to the children we make. But we're aware now, I think, in the words of Charles Taylor, "that we're living way beyond our moral means and we need to restore, including with the government voice, an ambient culture toward responsibility for the children who we create." Thank you very much. I'm sorry I went over time. I just didn't see a way to put it all out there, but I will be silent and you just go right ahead. Thank you very much. [Audience applauds]
Emily Buss (00:25:12):
Thanks a lot. So this is fine. I knew we were going to get a sort of very, very general description of the theme. Wasn't sure about any of the particulars and didn't think I was just going to come talk about my own thing. I want to be responsive. So that means I'm totally winging it and some things I will forget that I wanted to say, et cetera, et cetera. I apologize for that but I hope it actually makes it more interesting and more productive, right? We're trying to have a conversation. I guess I want to begin by saying well, I mean, there's tons we agree on. I mean, we agree that child wellbeing is tremendously important, that in all kinds of ways is sort of obvious when one just thinks for a minute, it is easy for child wellbeing to get less of the attention it deserves.
Emily Buss (00:25:56):
They don't vote, children don't vote so they're the most vulnerable. I could go on and on, but I think it sort of states the obvious. I have been very interested in thinking about, in some very different contexts, the extent to which ensuring that the law is designed to serve children's interests necessarily requires some sort of pulling away or in some ways curtailing rights of adults. I thought about it in different contexts, including first amendment speech rights and I could go on, but I don't want to get distracted except to say that this topic of how to think about how inevitably you identify rights that are underserved, you might sort of necessarily be pushed to think about where's the give, where's it coming from? What's in conflict is really interesting.
Emily Buss (00:26:43):
Often I think the answer is way more complicated than here's an interest, so on the other side, here's the other interest. And the example I'll give is that many people, when they talk about parental rights or are critical of parental rights will say favoring parents over children, if you look at how parental rights have evolved over time, they're driven heavily by this notion that children are generally served by their parents having a lot of rights. So the idea has been figuring out how do we get to the world and a more narrow question, how do we design law to serve these extremely important, but very hard to achieve goals? It's really complicated, right? It's really complicated. So I agree that child wellbeing is tremendously important. I agree that there is a lot of support for the idea that having some version of a two parent structure serves children's interests because you have, you know, multiply the income, multiply the time, multiply the patience.
Emily Buss (00:27:40):
Anybody who's been a parent knows it's hard work. It's helpful to have a helper, it's helpful to have a partner. I think that there's a lot of support for that, which is not to say any suggestion that there are not many, many very successfully raised children who were raised in other arrangements. I don't think you were going that far, but to say it often is the best way, and we should look at ways to support people in having that kind of stability, I agree with. Is it the only way? Absolutely not. I want to say more about backdoors. But where I need to have more conversation is I don't see your connections. What I'd say is, the story you tell about the sort of evolution of our understanding of a right to you could say privacy appropriate of freedom, right?
Emily Buss (00:28:34):
Is I think I agree with most of the steps. I mean, I would say some of the things that may be sort of most striking is more a story of how Kennedy writes opinions. Don't get me started not a fan. So there is this huge sort of very soft idea of sort of celebrating, you know, achieving one's identity. And you sort of say, well, okay, that does seem like it's something that's important to people's lives. What's it got to do with the constitution? I kind of get it, but how does this work? How do we define it? How do we confine it? So I think there's, you know, I think at least maybe a piece of that, we might find that we have a lot of agreement in sort of where the danger in some of the judicial opinions of sort of drifting into a world where it's sort of a soft language that is dangerous in the sense that it's hard to know who gets to decide where it stops.
Emily Buss (00:29:28):
That said, I am a big fan of the decisions reached in Windsor and Obergefell and I think I'm a fan for reasons that are very much driven by exactly the concerns you have. Which I think is one of the strongest messages, one of the strongest driving forces behind the litigation in those cases and in other cases. Of people trying to have family structure that you're saying there's a lot of support for suggesting is a very good structure. They wanted to have the support of the law in longevity and stability. They wanted, they were, they were raising children and they wanted to do it in a way that was going to serve the interests of their children the best. So I'd say again, share the goals. I'm not sure I see those connections.
Emily Buss (00:30:17):
The back door aspect. I hear it so much. So anybody who studies sort of thinking about law and how it can affect how families are shaped, the decisions families make, the individual's decisions make about whether they become families and how they become families and how they will behave in families. Is dealing with an issue it's actually prevalent in law in all kinds of circumstances, but it has a special salience when children are involved. You would like to design the law so that it did everything it could to support what the best decision making, of course, it's hard to say what exactly that is, to serve children best from the get go. And you would like it to prevent all the kinds of decisions that are made that put children at tremendous risk.
Emily Buss (00:31:04):
I think we share that. I think everybody was sort of like some version of that. Ever, for time and Memorial, people have produced children and people have had to respond in some kind of a way that you might call backdoor. Now, it doesn't mean you throw up your hands and say you can't structure the law, you can't structure programming to try to minimize that. But I think, inevitably, some element of backdoor exists. Adults create children, the children arrive in the world, and then we might be looking at, you know, sort of a backdoor, right? And I think that connected with a point you're making, that there's this tremendous power and we should be helping people exercise that power in ways that don't hurt children.
Emily Buss (00:31:48):
But I don't think you were saying that we should eliminate the back door so that people do right by the front doors. I wasn't sure about that though, [inaudible] So the idea is, but we will need back doors and we have had some tremendously important progress made in law to ensure that children in whatever their circumstance that we try to respond and allow them to have opportunities. You don't say "you're illegitimate, therefore, it's okay. You know, we don't want illegitimate children. So we'll just have a rule that treats you like crap." No, no, that's not okay. The kid had nothing to do with the choice to engage in sex in a context where they would be born outside of wedlock.
Emily Buss (00:32:26):
So I think we agree on that question. I totally agree with a lot of your policies. I mean, yes, we should be providing universal daycare. We should be providing early childhood education. There's a lot of empirical evidence that suggests that very high quality preschool education makes all kinds of differences in people's life prospects. Absolutely. And all this stuff is really expensive and it should happen. Totally agree. I just don't know what- I don't understand what that- I guess there's two things I'd say about that, sort of pushing back. One is I don't get the connection with some of the things you're connecting it with. And I'm not sure I understand the valorization either. I mean, I looked at- I think one of the things that seems to be interesting about the book is that you have really looked, it sounds like, and are continuing to look in real detail at the voice of the federal government and all these manifestations. I hadn't heard a lot about it.
Emily Buss (00:33:21):
Like I haven't looked at- I haven't seen some of the things you talked about, but I did look at the briefs and cases that I thought might be the most salient which is the contraceptive mandate cases and the government's briefs in those cases. And it's true that one of the things they mentioned is the value to women of having control over their fertility so that they can pursue some things that would be compromised if they had children when they were not prepared to have them. But it also talks about- I mean, the interest of children and child health is mentioned many times. So once you become pregnant, highly significant impacts on the health, her child's health, the economic wellbeing of herself and her family. I mean, if you look through those briefs, I didn't find kind of, "oh, if it feels good, do it" at all, right? And that's even, probably old, do you even say that anymore? Back in the day, that's how we talked about it. [Audience laughs]. You see all kinds of language about sort of, you know, two things. One is child and family wellbeing and women's choice, right? So the pushback I'd give you is that I just do not see even the good things you've quoted so far. This idea that there is a sort of strong pronouncements about the importance of including, for example, contraceptive coverage in health care plans or access to birth control and the like. I see that message is not because sex is great and you're sort of not a complete person if you're not having a lot of sex. I think it is because personal choice about these matters that I think you would agree are a really important part of people's lives is essential. And that women biologically are in a very different place than men. If they are going to have that comparable level of control over their own lives, the idea is that this helps that happen. And there may be things that you could point to and see, but I think, you know, the language that is the kind of the most like, you know, "we love sex, the more sex, the better, we have a constitutional right to sex."
Emily Buss (00:35:22):
That's the kind of Kennedy thing. And the other is just a message that, yes, it is about life control. But that life control, even in the briefs, seems to tie with when people decide whether or not to have children so that people who have children really want them, that's an important part. All the parents support that, right? And they have them when they're ready to have them, when they think they're ready to have them. And they have them with the right supports and all that. So I guess I can't put those two pieces of your argument together. So I'd like to hear more about that. I have no sense of time as my people who take classes from me know. So I don't know why to keep talking or I should stop maybe so you can respond? Why don't we do that?
Emily Buss (00:36:05):
Okay. So I'll talk a little more and then I want you to have a chance to talk. So one thing I- so I'm not sure how much- this is something when I was sort of guessing at what you would say, I had a question. And so I'll ask this as a question, because I'm not sure from your remarks where you are on this. There's always this question of how much work law can do, right? And it's actually, it's a very hard question to answer. I mean, I'll sort of give the example of the sort of emergence of no fault divorce.
Emily Buss (00:36:51):
And there are many who contend, that no fault divorce led to kind of a collapse of marriage or the problems of divorce. There are at least as many social scientists who contend that it predated. That the trend and the direction, the change in attitudes about divorce predated, the no fault movement and the no fault movement was just trying to bring the law in line with the sort of strong shift in social norms. As a matter of fact, judges were sort of dealing with the fact that people would have to sort of make up, you know, couples that decided "we want a divorce." They couldn't get divorced unless one of them committed adultery. So they'd hire the blonde and they do all this thing. And the judges were just like, "this is not what law is supposed to do, right? Sort of putting us through these shenanigans."
Emily Buss (00:37:33):
Which is not to say, you know, I don't mean to say it's obviously the other way either. It's just really hard, I think, to get a handle on what law's effect is and how much effect it has. But it is pretty clear that one has to be pretty humble about what law can do. But the reason that this is a question is I'm not sure- I don't think you're so much advocating rules that say "you must be married." You're not saying that, you're looking for ways to provide supports and particularly to provide supports for-- I think this is right-- women who want to have motherhood be a big part of their lives, period, and are very much connected with their sexuality. And that you feel that is a set of life choices that is being traded away.
Emily Buss (00:38:31):
And I guess I've got to say, well, how has it been traded away? Because clearly other people have an option to do something else. And clearly the Constitution can be pointed to as one of the many sources that supports the idea that people can make other choices. But I don't think you're saying "people shouldn't be able to make those other choices." You're just suggesting that the way this all comes together actually sort of makes a tray. Something isn't being done because of this valorization, some level of support isn't being provided because of this valorization. And that's what I wanna hear more about. How do those come together?
Helen Alvare (00:39:06):
Thank you so much. [inaudible] I have like this much drafted of the book and even to put it in an outline to do it today is not something I could do as much as I wanted to. So professor Buss is doing amazing things in just hearing me for the first time and I really appreciate a scholar of her stature giving me these questions. So let me just pop around in the way I have them in the page. The question of how much work the law can do-- totally agreed-- the idea that, you know, the law can "make men and women moral," right? Tough one, but the law is super active right now in everybody's sex and marriage lives.
Helen Alvare (00:40:00):
There is so much government spending to talk to people about sex. I can't go in D.C. a half a block without a bus that goes, "he knows, she knows." And you're like, "oh, it's an AIDS bus, right?" It's about AIDS, right. Or 1 800, Who's Your Daddy, you know? I mean, the federal and the local governments are so active and you can go on their websites. The white house.gov for women, HHS teen pregnancy prevention programs, and look at what they're actually funding. I think they spend $2.3 billion a year in birth control programs across the federal program, some of that with state matching, and then they spent another billion on these teen pregnancy prevention programs. And so they have a lot to say. They are putting lots of materials at public health centers and they are saying it disproportionately to the poor in the United States. And so when Professor Buss asks about "gee, this voice," part of it is we're hearing it if we go low, but the people who are really hearing it are the people coming in and out of government subsidized community health centers, Planned Parenthood's, Medicaid doctors, the programs that are being supported by the teen pregnancy prevention. And they're getting very, very specific materials that talk about sex in terms of: Do you consent? Do you feel like you really want to have it? Are you sure that this is the person?
Helen Alvare (00:41:34):
And make sure that- they tend to have a, you know, a feminist bent to it that says, make sure the woman is getting pleasure too. It's not just for him. And what I'm suggesting is the problem is what they are not also mentioning. We obviously have this huge out of wedlock pregnancy rate. Now it is mostly women over their twenties now, right? Teen pregnancy used to be much higher than it was in part because when it was super high, 89% of them were married in the sixties and early seventies. Now only 15% of teen pregnancy is marital. So we have less of it, but we have much more non-marital than we had. In any event, we know these children are going to be conceived. We know they're going to be conceived because birth control fails. We know they're going to be conceived- again, I can't recommend more to you the book "Promises I Can Keep" by Edin and Kefalas, two sociologists who lived with single moms in Philadelphia and Camden for two and a half years and spoke about what they learned. And the young women, they can't find romantic relationships, but they are going to be a gift to somebody and it's going to be the child. And so we know the children are coming and the question is what can we do? And I'm all for a variety of the backdoor programs that work.
Helen Alvare (00:42:47):
I am a little less sanguine about the preschool stuff. You know, the Perry preschool, the Abecedarian project, they are like the magic words that everybody talks about that had longterm effects. But every two or three weeks, Brookings comes out with an evaluation of these programs saying that they're not doing what we hoped. And they cost an enormous amount of per child. Yes, we should, but we're not quite getting those results and they don't linger past a year or two off. And that's why Perry preschool Abecedarian were so amazing. It was a parent child school home, three hours a day after school, you know, one assistant to three children kind of thing. It was amazing. Some of the programs they're suggesting are now- they want to start three weeks after birth to try and make up for the the word deficit and the conversation deficit and the open question deficit.
Helen Alvare (00:43:42):
So the question about, you know, is the government's voice really valorizing? And I don't go and I don't use the expression. I think that's the question that I'm most glad for, because I really have to show that. And I am not saying that they're saying to people "go on and have all the sex you want all the time, it's really hot." But it's surprising how close they come, sometimes. They partner with Planned Parenthood and the national campaign for teen and unplanned pregnancy at Bedsider, which is really prevalent, it's widespread. If you went and looked at Bedsider, they put out the number of teens who contact them, the numbers of postcards they sent out, the number of contacts they have. They really reach a lot of young women, including women in their twenties.
Helen Alvare (00:44:32):
And at one point Bedsider was like putting out pornographic postcards, like genital shaped objects from nature and saying, does this make you think of something? It was just really interesting for the national campaign to prevent teen and unplanned pregnancy to be putting these out. They partner with Bedsider, they partner with Planned Parenthood, they have these teen pregnancy prevention programs. What I'm saying is whatever we're doing in backdoor and whatever they find, you know, I don't know that the birth control programs are going to work. And if they move toward LARCs, long acting reversible contraception, there's a lot of ethical issues we have to deal with there, right? And they make- even AEI, which is by no means sort of, you know, sexually conservative. American Enterprise Institute and Brookings got together to talk about antipoverty programs. And there was this fear that the long acting contraceptives would be deemed sort of, you know, temporary sterilization three to 10 years, usually offered most to poor populations. There's a worry about them, right.
Helen Alvare (00:45:35):
There was also a question of whether some women will use them if we don't change their opportunity costs and incentives so that they have education, a job, the possibility of a stable relationship to look forward to. Will LARCs even make a difference? Maybe, maybe not, but they do come with ethical questions. They also come with the question of what are we training young people to think about sex and show, you know, the more non-marital sexual encounters a person has, we know the greater likelihood of divorce, right? And it probably has some causal relation, although there's reverse causation there too. But anyway, so
Helen Alvare (00:46:12):
I think between what I'm seeing at HHS, what I'm seeing with their partners, Kennedy's purple prose definitely is a big factor. But even before that, Casey versus planned Parenthood. And I do think that even though Health and Human Services also talks about "we need free contraception for children's wellbeing," I did a very close analysis of their sources on that. It's not a strong causal argument. Their opening shot and their most important one is "we need no unintended pregnancies," not, "we don't want pregnancies. We would prefer, we would like to assist you in stable relationships and think about the child as well." All I'm saying is it's such a small point really. It's missing. And I don't know why. And I think they're over valorizing adult interests here, when they could preserve choice.
Helen Alvare (00:47:16):
I'm not talking sticks, I'm talking carrots, I'm talking common sense, I'm talking evidence. I realize that it's hard to get people to put children's rights first. Robert Putnam, when he wrote his book, "Our Kids," he was quoted as saying, "well, I'm kind of banking on the fact that people will want to do more for kids... but maybe I'm wrong." Not only don't they vote, they don't contribute to presidential campaigns. Who knows whether they will be attended to. All I'm saying is it's surprising that we're not attending to it. So anyway, thank you very much. Thank you. [Applause].
Audience Member 1 (00:48:05):
Thanks so much. One of the things that I think did not occupy a lot of the discussion was it seems like men are sort of getting off scott free here, right? All of the burden, all of the risk is falling on women. And of course that's, that's part of just how it works but it seems to me like all of those sort of legal sticks that we used to have at least try to get men's behavior- to create some risk or some liability for them to regulate their own behavior. I think a lot of that seems to be lacking now and all the programs through the back door, try to sort of assist women and give them a consequences.
Helen Alvare (00:48:54):
And let me just say, because 85% of single parent households are headed by women. So it's not that these programs don't address men, it's just that they're definitely disproportionately dealing with women and their children.
Audience Member 1 (00:49:03):
So my question is, are there any legal tools that we're not using right now that would be effective in the incentivizing or disincentivizing or somehow impacting men's behavior to try to put more of the onus on them to get them to be part of the solution?
Emily Buss (00:49:20):
So I mean, I'm a big fan of being pretty darn serious about child support, as you know. But here's an area I'd say, I think law is pretty limited. I mean, there are things we can do to not make men who want to do right not able to do so, right? So we should have jobs for people. We should figure out a way to sort of allow people to have an income they can live on and that they don't lose it if there's a man in the house. We should not incarcerate people for super long periods of time. There are those things, you know, obviously decisions that have huge impact on families. But if you're saying the kind of underlying concern that it's pretty normal for a man to produce a child and then just sort of disappear and not have any responsibility and what can we do about that? I mean, I think it's about norms, it's about culture, it's not about law heavily. I don't mean to say there's no such thing as a program other than child support that might help things along the way.
Emily Buss (00:50:20):
But I think, I mean, actually I'm committed to being an optimist this week. I believe the world is changing in the right direction, but it's very slow and faltering and it's easy to have a lot of steps backwards. But I think it's the culture and how we raise our boys. We meaning how men and women raise their boys. That will make the difference over time, but I don't know if you have thoughts about that?
Helen Alvare (00:50:55):
One of the things is child support, which got a whole lot more certain. I used to be part- when I was practicing in the 1980s, I think we were collecting like less than 35% of child support in the state of Pennsylvania. Now much higher, but you can't guarantee it and the number of men who are judgment on child support is huge. One of the good things we've learned about child support though, is even if you have just a small amount, usually the father takes more interest and responsibility. Then he's a contributor. And so child support has this good backwash effect too. It's not just draconian, it's your responsibility. But it's also been- they've shown that maybe it's getting the fathers more attached to the children. So that's good. Second, President Obama, who has spoken movingly about fatherhood, I think when he came in and there were these marriage programs, and we could talk about the federal marriage initiatives, which had very little effect, but some of them had some decent facts on couples' relationships. And, you know, anytime you start something new, I mean, birth control has been a failure for 40 some years and we're still trying, right.
Helen Alvare (00:52:03):
We need to keep trying with these marriage programs to see if we could fine tune. From the report on which one of these worked and which one of these didn't is pretty dismal, but there were a few bright spots. And they are, I think president Obama moved that more toward getting fathers to stay connected with their children. But the data is really clear, if he never married the mother, the odds of him being in that child's life two to three years out are just drastically lower. The other thing that's kind of interesting is there are movements in family law, which is surprising, to get the father to be responsible earlier. One of them is called Pregnant Mommy, which is a proposal. I can't remember the the family professor who put it out, but it is a proposal that the father of the child pays support for the mother and child during the pregnancy, from the beginning. And the other is one by Professor Merle Weiner called Parent Partner Status.
Helen Alvare (00:53:05):
And she is going to have some- at least the state is going to try and require the couple to maintain your relationship. I reviewed her book and it's very cheerful and hopeful and she's a dear, but it is really a rough go. It's hard to imagine. I mean, you do have now 58% of children who are born non-maritally and the mother has co-habitating. So the father is in the life in more than just even there at the birth, but the problem is 60% of those will be over in three to five years, he's gone. And the multi-partner fertility is very high. So there's movements to do this. I frankly think Pregnant Mommy is a cool idea. I think Parent Partners is probably not going to actually be in law. And then I really support- I mean, I just, my heart- because of this nonprofit that I have is called, "I believe in love," and I'll go ahead and laugh. But one of the things we do is we send people to work in working poor communities and they get the people who are living there to write about their experience. So from meth addiction, through a relationship that helped them get off meth, to getting off meth for their child, to trying to move toward marriage, to deciding not to marry someone just because you're sliding versus deciding and cohabitation, and you are not going to bring another man into this child's life. We know that single moms do better than women who actually bring another man into the household. Cohabiting or married later, the stability of the household was better. So we have all of these things, civil society on these, great. But I also think that if we don't up the amount of money that men are able to contribute on average, the working poor, where we see unplanned pregnancy skyrocket- if we don't have programs obtaining friendships, I just don't know that we can really do this. Women are not going to marry and the men aren't going to ask.
Audience Member 2 (00:55:06):
Yeah. I guess it sort of flows from what you were just saying, but I was wondering what you want to happen? Because from what I understand, you think that if the government talks about sex, marriage, and children all together, that might have some kind of causal relationship towards avoiding marriage, or maybe you just think that we need to do other things. But I wonder how this would work with structural barriers to marriage like mass incarceration and people not having money.
Helen Alvare (00:55:36):
Right. See, there have been books and articles written about all of those topics about, you know, mass incarceration, about universal basic income, education. Obama had a program and I was sorry that it didn't get bigger, which was using community colleges as these major training programs for lower income men and women. So I support those efforts. What I was taking on was a very narrow thing, this surprising use of government money and voice to go into schools, to go into Planned Parenthoods, to sound in their legal briefs, their public voice when they're defending a policy or when we have politicians running for office. Do I think that there's going to be a direct cause? Will we ever be able to say, "wow, changing the voice on this made a difference?" What I'm saying is they shouldn't be doing harmful work. Which I think valorizing sexual expression completely indifferent to relationships to children is actually violating the do no harm principle. And then I think they ought to use their considerable money and networks and the people they ally with-- Planned Parenthood or the national campaigns against teen and unplanned pregnancy. Whether it's John Kerry going in front of Hollywood studios and talking about making films to overcome ISIS, I'm talking about using everything they've got and the considerable money they have to sound a very positive, not stigmatizing, not nasty, not racist, not classist message that's pro-child, pro-health. And my fear is, if we wait until these other things work, to say, "well, now we can say this is realistic. So we should begin saying it." Some roads don't have an instant revenue but they're still the right thing to do. So I don't know how much, but I know that they are violating the first do no harm principle and failing to use significant resources and network to do that.
Audience Member 3 (00:57:53):
I think many people would argue, accepting a lot of that, that a lack of valorization is in and of itself a type of harm that can be done to people. A lack of valorizing of general personhood, of your right to self expression. For example, Professor Buss touched on this a little bit, and I think that- my intuition is that you understand that government valorization can serve a very important purpose. So for example, in Harris versus McRae, part of the idea about whether or not the government should fund abortion is whether or not it's like putting its implicit approval on what's happening. So government approval can have a really strong psychic effect on people. I think that's also the basis of the equal protection, like our whole entire idea of equal protection rights, that if a government is allowed to arbitrarily treat any particular group differently, it's going to have a negative psychic effect on that person.
Audience Member 3 (00:58:53):
So I think one half of this room is probably coming to the table with a first principle. There's also reading do no harm is that people's right to be who they are, is very important. And another group of people in this room is coming to the table with a very important first principle, which is that children should not be harmed. Also beautiful and also correct, and very important. But I think that maybe one of those groups could have a fear. So in your presentation a couple of times, I feel like one of those first principles, was sort of diminished-- the idea that government valorization of sexual expression could have any value. A lot of us believe that it does. And we don't. I hope that you won't misunderstand that belief or an idea that I also don't believe protecting children is important because I certainly do. And I imagine that you, at several times, have the same fear that if you come into a room and maybe advocate for protecting children as a first principle, perhaps people will believe that to be a minimization of equality, which is not what you intend to do. So I just, I don't even know if that's a question.
Helen Alvare (01:00:03):
No, that's a good point. There's a prior that we differ on. So, a couple of things. One, I think any time you treat sex without thinking both of the personal relationship and of children, you diminish it. It's anti-personal, right? But what I'm saying here is I think you prior, which is that when you're talking about personal identity, but that's how you would identify what I'm talking about valorization. When I'm talking about personal identity, vis a vis sexual expression, since I can find it to heterosexual expression and use the same sex marriage cases just to show the valorization of the individual's expression. But what I'm really talking about here is policies about people who might create a child together. You talk about personal identity, but I'm talking about sex. And heterosexual sex has the possibility of creating children. It is also in relationship to another person, the stability of that relationship being important to children, so it's personal identity, but it is always also implicating the wellbeing of a second and possibly a third party. And I want the government to at least acknowledge more that the wellbeing of the two is vital to the wellbeing of the third. So I would reframe your very first point, even though I understand where you're going with your whole comment that I think we can do both, but we have to recognize that by valorizing personal identity in connection with sex, there's other parties involved.
Audience Member 3 (01:01:38):
Absolutely. It's all very intimately connected. I think the, the driving point of my comment though, is I hope that you will take very seriously people who are searching for equality and are searching for validation from the government that they are allowed to be who they are express themselves in ways that are consistent with their conscience. I hope that you also take very seriously that people are also very committed to child welfare, because I think that while at times those two things may be at odds with one another at the margins where we're deciding where to draw the lines and make the laws, I still believe both of those things very, very intently. And I am sure that you do as well.
Helen Alvare (01:02:15):
I know our time is up. I was just going to say that that's interesting because you go along with the point about what the government speaks makes a difference and your analogy, the laws like equal protection or non discrimination. I want to think about that further and sort of the impact of the government's voice. So thank you.
Speaker 1 (01:02:42):
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