Contracting Out of the Culture Wars: How the Law Should Enforce and Communities of Faith Should Encourage More Enduring Marital Commitments

摘要

This article attempts to transcend the “culture wars” as they are played out in the family law arena by drawing on postmodern values, such as individualism and neutrality, to allow individuals who so desire to choose to emphasize more traditional or communitarian values, such as interdependence and attachment. This article argues, then, as others have, that the role of contract in marriage should be extended for those who choose to agree to additional terms. Here, the argument goes a step further, however, by positing an active, positive role for communities of faith to play in a marriage regime of expanded contract. Specifically, this article argues that communities of faith should not only be allowed but, in fact, should be encouraged to define the types of commitments they wish to bless as marriage.This article first lays out some of the background for understanding changes in marriage and divorce in America, including views on what marriage is and should be as well as developments in society’s conceptions of morality and the role of law. It is in this context that this paper presents some of the major legal and non-legal attempts that have been made to strengthen marital commitments. After giving an overview of what others have already written on how expanding the role of contract might be used in this effort, this article builds on successful non-legal approaches used by communities of faith by introducing the idea that such communities also should participate in developing marriage contracts. The rest of this article defends this proposition, both explaining why communities of faith might desire to be involved in such a project as well as attempting to answer critics, especially those concerned about furthering their particular vision for the family in America – whether more progressive or traditional.