ROUND TWO

MND Roundtable Discussion on
Fathers' Rights and the Marriage Movement

The debate over fathers' rights and the marriage movement is a strange expression of a more general and classic ongoing argument over individual rights verses arbitrary group control. At least a faction of the marriage movement suggests that individual rights are fundamentally incompatible with "anthropological reality" and social good.

The political approach to marriage reform, promised by Bush administration officials, is to "build on what we already have." That is to say, build on recent reforms (that enjoyed bi-partisan support) that eliminated family rights; particularly through attacking fathers and eliminating individual rights related to family issues. In the movement that supported those reforms, it was claimed that children and taxpayers would benefit. The clumsy factual claims of that movement disproved and discredited, we are asked to refocus our attention on transcendent views on marriage and fatherhood.

Tom Sylvester's play on the theme in round 1 is particularly clear. He asks us to consider fathers' rights as one of four alternative responses to divorce. One must ask why he would treat fundamental rights as nothing more than an alternative policy choice, to be swept away as soon as someone suggests a new idea – like marriage? Like child support? Like work and family?

Rebecca O'Neill provides an astute contribution to the discussion with the  argument that marriage was once a sacrament, became a contract, and now is an arrangement. My research has focused primarily on the logic and mathematics of child support formulae, known as "guidelines," and has broadened to include enforcement policies, the history of child support reform, and comparative legal analysis. The role of the "contract" is to provide an objective understanding of the implicit contributions and obligations of marriage and family that become the focus of attention when couples divorce or have children outside of marriage. Eliminating or arbitrarily modifying the contract eliminates objectivity.

The term "fathers' rights" is composed of two words, one literally correct and the other misleading. The term "rights" must be taken literally. The fathers' rights movement is primarily a response to the systematic elimination of fundamental rights that has accompanied family policy reform. The implication that the issues are exclusive to fathers is misleading. Even in the initial reform thrust, it is clear that noncustodial parents, both fathers and mothers, have suffered the most. Many custodial parents supported reform because they were promised profits. It is not clear how many are aware of the more profound consequences of selling their fundamental rights. Some are. And some have fought the effects of reform in their own lives, because they refuse to cheat their former spouses, the other parent of their own children, even when government insists.

The marriage movement needs to pay close attention to the even broader consequences of the elimination of family rights. Family, and the meaning of marriage, are being legally redefined by constitutional cases resulting from arbitrary political intrusion into fatherhood. Courts will decide whether the battle for family rights (the legal recognition of the nature of family, marriage, and the unique status of the individuals involved) has been won or lost. Under question is whether family rights are constitutionally protected or merely political constructions to be modified at the whim of legislators. Moreover, do legislatures have the authority to rescind constitutional rights simply by recasting private interests in terms of social or economic policy?

Roger F. Gay