Rights, wrongs, and the assault on the family
International Journal on World Peace
|Subject Terms:||Families & family life
In a speech, Abrams tells how human rights has been used as a weapon against the family. The assault on the family is promoted by the courts, political interest groups, and by those who fear moral responsibilities.Copyright Professor of World Peace Academy Jun 1998
RIGHTS, WRONGS, AND THE ASSAULT ON THE FAMILY*
Elliott Abrams was appointed president of the Ethics and Public Policy Center in July,1996. He spent four years working for the United States Senate. In 1985 Mr. Abrams was appointed Assistant Secretary of State for Inter-American Affairs, where he supervised US policy in Latin America and the Caribbean. In August 1988, Mr. Abrams received the Secretary of State's Distinguished Service Award from Secretary George P Schultz for his work in the Department.
Mr. Abrams was a Senior Fellow at the Hudson Institute from 1990 to 1996. He is a member of the Council on Foreign Relations and chairman of the Board of Trustees of the Francisco Marroquin Foundation and of the Nicaragua Resistance Educational Foundation. He has appeared on "Nightline," "Meet the Press," "Face the Nation," and other major television news programs. He has written for Commentary, the Weekly Standard, the National Interest, and National Review, where he is a contributing editor. His book about the American Jewish community, Faith or Fear: Hom Jews Can Survive a Christian America, was published by Free Press in 1997.
The assault on the family is a critical matter for American society. But the family is more than the central building block in social life, it is in fact the central building block in political society as well.
A recent blue ribbon panel has just explained this yet again. "The first and most basic seed-bed of civic virtue is the family," the Institute for American Values claimed just a few weeks ago. Why?
Because self-governance begins with governing the self. In this sense, the family is the cradle of citizenship, since it is in the family that a child first learns, or fails to learn, the essential qualities necessary for governing the self: honesty, trust, loyalty, cooperation, self-restraint, civility, compassion, personal responsibility, and respect for others. As an institution, the family's distinguishing trait is its powerful combination of love, discipline, and permanence. Accordingly, families can teach standards of personal conduct that cannot be enforced by law, but which are indispensable traits for democratic civil society.1
Yet if we as a society know this, we do not act on it Indeed, we act contrary to it. In the last several decades, we have acted-in laws and mores-to undercut the family at every turn. I will try today to explain very briefly how, and why.
Let us begin with the "how." In the United States, and to a lesser but significant extent in every Western country, the rhetoric of rights has been used as a weapon against the family Human rights, one of the fundamental conceptions and achievements of Western civilization, has been aimed like a giant cannon at another fundamental, the family Twas not always thus. It is well worth noting what article 16 of the Universal Declaration of Human Rights, written only 50 years ago, had to say: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the state."
Let me give a few examples of the ways in which we have moved away from that conception of the family.
My first example is parent-child relations. American law used to protect that relationship fiercely, preventing the state from interfering in it except in cases of real abuse. In Pierce v. Society of Sisters in 1925, the issue arose of whether parents could educate their children in a private religious school if the state wished all children to go to public school together. The goals of such a policy, for example to integrate immigrants into American life and to overcome class and religious differences in American society, were far from trivial. Yet the Supreme Court held the statute unconstitutional. The Court held that the rights of parents to direct the rearing and education of their children were simply inviolable. "We think it entirely plain," the Justices said, that the law in question "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control....The child is not the mere creature of the st! ! ate; those who nurture him and direct his destiny have the right, coupled with the high duty to recognize and prepare him for additional obligations."2
In a 1944 case, the Justices added that, "It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include the preparation for obligations the state can neither hinder nor supply." Powerful words. Yet they no longer really represent the Court's understanding. More recently, in the Kiryas Joel case, also involving parents' desire to rear their children in their own religion, Justice Stevens (writing for three members of the Court) gave the new view. New York state's education law went beyond the permissible bounds because it "provided official support to cement the attachment of young adherents to a particular faith" and in this sense "affirmatively supports a religious sect's interest in segregating itself and preventing its children from associating with their neighbors."3 So now, state action whose effect was to help parents keep their children faithful to their religious beliefs could be held ! ! unconstitutional.
Some courts have begun to stress the rights of children against their parents rather than the rights of parents and children against the state. Mary Ann Glendon of Harvard Law School gives an extraordinary example: "That notions of a child's individual liberty can be taken quite far by American courts is evidenced by the decision of a New York Family Court judge that a mother could not invoke the power of the state to have her fifteen-year-old daughter adjudicated as a person in need of supervision simply because the daughter left home when forbidden to continue her relationship with a twenty-one-year-old lesbian."4 Here we see a theme that will return time after time: in place of the protection of the family and its rights, courts now speak of the individual's rights against the family even if that individual is a minor.
Relations between husband and wife offer an ever sharper example of the evolution of what Professor Glendon has called `rights talk'. Today, the courts harp upon what they call the "right to privacy," which they have found in the American Constitution and which they see as perhaps the central bulwark of our liberty. The first key case to take this view was Griswold v. Connecticut in 1965, where a state statute against the sale of contraceptive devices was struck down on privacy grounds.5 But the privacy in question was that of the family; it was not an individual right. What was protected was the relation between husband and wife. In 1961, Justice Harlan had written that "of this whole private realm of family life it is difficult to imagine what is more private or more intimate than a husband and wife's marital relations."6 Now in Griswold in 1965, the Court took this view again: "Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the! ! degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social progress."'
That was 1965. By 1972 it was all over. Rights now adhered to the individual, not the family or the marriage. In Eisenstadt v. Baird, the issue was the availability of contraceptive devices to unmarried couples. And now the Court took a very different view, reflecting the social changes that were evident in America beginning in the 1960s: "The married couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional make-up," the Court said. Now the law was going to protect not family life, but "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."8
Let us take just a few more examples, those of divorce and of the definition of what constitutes a family When American law highly valued marriage, it did not view divorce so favorably for it was obviously a blow to family life. But when the family is merely a temporary collection of individuals, and the bearer of rights is these individuals rather than the family, on what grounds would the state interfere with family dissolution? None; so divorce is now viewed in essence as an individual right. In several European countries, divorce statutes contain a hardship clause: that is, the spouse petitioning for divorce must be able to show that it would cause no hardship to the other spouse. Not so in the United States.
As Professor Glendon has written, what a powerful message is sent here.
In forty-one American jurisdictions, one spouse can terminate a marriage without the other's fault or consent and without delay beyond that normally attendant on civil litigation. No state's divorce law has a hardship clause....The hardship clauses, for example, in the English, French, and West German statutes rule out the notion that divorce can be viewed in some sense as an individual's `right.'....A legal system that requires a spouse to wait for several years to divorce a non-consenting husband or wife is obviously promoting a different ideology of marriage from that fostered in a country where a divorce is available on one party's demand in a year or less.9
Finally, let us turn from the ideology of marriage to the ideology of the family itself. What is a family? Definitions have always been somewhat fluid, able to include not just the traditional ideal family of husband, wife, and their children but many other variations: the grandparent raising the grandchild, the childless couple, the elderly never-married brother and sister living together, parents and their adopted children, and who knows how many other possibilities. Today, however, there is a real assault aimed at dethroning the very notion of family Instead, individuals are said to have the right to be a family whenever they define themselves as such, whoever they are and whatever relationship they have; and conversely of course for the law to refuse family status to their relationship is seen as a violation of their rights.
Now it should be obvious that to call everything and anything a family is to say there are no real families. It is to say that there is simply no distinction of which the law may take cognizance between a legally married husband and wife and their children, and two men who are living together. Do you think that is what the drafters of the Universal declaration of Human Rights had in mind when they said, and every civilized nation signed, that "The family is the natural and fundamental group unit of society and is entitled to protection by society and the state?" How did we get to this extraordinary pass where the rhetoric of rights is used as a weapon against the family? I believe there are three answers, one legal and historical, one political, and the third moral. As to the first, there is no better guide than Professor Glendon. As she pointed out in her superb book Rights Talk, American "rights" rhetoric is often quite exaggerated, holding up the liberty of the individua! ! l as an absolute and simply overlooking the true bases of our liberty in an ordered society As she put it,
In its simple American form, the language of rights is the language of no compromise....The most distinctive features of our American rights dialect are the very ones that are most conspicuously in tension with what we require in order to give a reasonably full and coherent account of what kind of society we are and what kind of polity we are trying to create: its penchant for absolute, extravagant formulations, its near-aphasia concerning responsibility, its excessive homage to individual independence and self-sufficiency, its habitual concentration on the individual and the state at the expense of the intermediate groups of civil society.10
This kind of "rights talk," she explained, is "based on an image of the rights-bearer as a self-determining, unencumbered individual, a being connected to others only by choice. The lone rights bearer of American political discourse is an admirable figure in many ways. Yet he possesses little resemblance to any living man, and even less to most women.""
The man alone, the woman alone, even the child alone bear rights as they enter the courtroom, and the fact that they are members of a family-and would have been so regarded just a few years ago in our courtsis now all too often irrelevant. Professor Laurence Tribe described this situation crisply in his widely used constitutional law textbook:"The stereotypical `family unit' that is so much a part of our constitutional rhetoric is becoming decreasingly central to our constitutional reality. Such `exercises of familial rights and responsibilities' as remain prove to be individual powers to resist governmental determination of who shall be born, with whom one shall live and what values shall be transmitted."2
"What values shall be transmitted," Professor Tribe wrote. Now we come to the second explanation of how we got to where we are, which is in my view political. The new ascension of individual rights over the family does represent the values of certain groups: to some degree elite groups in the society, and to some degree groups such as homosexuals with an obvious interest in seeing family law rewritten so that they may share certain of the advantages and protections the law once gave to families. They promote an ideology of tolerance as the ultimate value, far higher than very old-fashioned values such as chastity or fidelity. And tolerance requires us both to change our private views of conduct we would once have condemned, and to change our laws so that such conduct carries with it no penalty and indeed becomes a protected status at law. Thus we move from calling homosexual conduct, for example, illegal, to calling it legal, to calling it equal to marriage and requiring th! ! at employers so treat it. And of course the next step is to call it marriage by changing the ages old definition of that honorable estate.
It is no accident that all of the changes we have been discussing seem to have originated in the courts. They are the least democratic branch of government and the branch most susceptible to the views of our social elites. It is the courts, for example, which have begun the assault on the definition of marriage; in no state has the legislature passed such a novelty But the third explanation to which I referred was moral. We have reached our current situation, where the concept of rights is used as a weapon against the family, because it is in the interest of some people to bring this about-to force a revision of the standards by which family life, was until recently judged-and judged for centuries and even millenia. The philosopher J. Budziszewski, author of the book Written on the Heart, has explained this to us in a recent article in the religious journal First Things. Those who do not wish to live by those standards suffer when compared to them. The mother who abandons h! ! er children would rather talk of her right to personal liberation than hear moral judgments. So, too, for the father who runs off with another woman and does not wish to support his ex-wife, or the child who laughs at a parent's rules about drugs or sexual conduct. They would far rather hear about their "rights" than about their families. Budziszewski explains:
Isolated from the community of moral judgment, transgressors strive to gather a substitute around themselves. They don't sin privately; they recruit. The more ambitious among them go further. Refusing to go to the mountain, they require the mountain to come to them: society must be transformed so that it no longer stands in awful judgment. So it is that they change the laws, infiltrate the schools, and create intrusive social-welfare bureaucracies.....Consider sexual promiscuity[One] tactic is inventing private definitions of marriage. Quite a few people `think of themselves as married'.... Unfortunately, people who `think of themselves as married' not only refuse the obligations of real marriage but demand all of its cultural privileges; because rationalization is so much work, they require other people to support them in it. Such demands make the cultural protection of real marriage more difficult.13
Real marriage and, more broadly, real families. The artillery of "rights talk" trains on families a powerful array of weaponry. It uses-or abuses-some very old American habits of language that belie our real lives and our real practices. It uses our legal system to impose values that most Americans do not share and undercut far more widespread, and far more traditional, systems of standards and beliefs. It places the self at the center of the moral universe and ignores our ties to others and our responsibilities to those closest to us and often most dependent on us. Family law, far from being that portion of our laws that protect relations between husband and wife, between parent and child, and between those (such as women with young children or those children themselves) who are dependent and those upon whom they must rely, becomes "an instrument of liberation" from bourgeois morality and indeed from personal responsibility.l4
And it brings a real political danger with it that matches the dangers to the family lurking behind much "rights talk." As Professor Glendon reminded us, "modern legal systems in varying degrees have come close to realizing a dream of the French revolutionaries: that citizens would one day stand in direct relation to the state, without intermediaries." The French revolutionary leaders "aimed at suppression of the corps intermediaires of the old regime under the slogan `There are no rights except those of individuals and the State."' The Supreme Court of the United States understood this in the 1925 case I referred to earlier, for they stated there that either children are fundamentally part of a family, or they will quickly become "mere creatures of the state."
And so we return to where we began. The family is the essential teacher not only of morals but of civics, as the Institute for American Values recently stated-"the first and most basic seed-bed of civic virtue" essential to self-government. We are well along now in the substitution of a very different view of the family, wherein it is a seen as a danger to the liberty of the individual, a form of repression that must be transformed. Cloaked in the rhetoric of rights, the assault on the family is broad and deep. Its defense must be equally broad, equally deep, equally impassioned if it is to succeed.
Human rights has been used as a weapon against the family. American laws used to protect the family as the most basic social institution, but recently courts speak of an individual's rights against the family, and of divorce as an individual right. The assault is promoted by courts which are reinterpreting the "right to privacy," by political interest groups who would gain from family decline, and by those who fear the moral responsibilities that real marriage and real families entail. The assault is broad and deeply cultural and any defense of the family must be equally broad and equally deep.
*This article is based on a speech given at the conference "The Family and Human Rights," sponsored by the Family Federation for World Peace and Unification International, New York, June 12, 1998. Printed by permission.
"'A Call to Civil Society," Council on Civil Society" Council on Civil Society, Institute for American Values, 1998, p. 7.
2 Pierce v. Society of Sisters, 268 US 510, 535. 3 Board of Ed. of Ktyas Joel v. Grumet, 512 U.S. 687 (1994). 'Mary Ann Glendon, The Transfornation of Family Law (Chicago,1996), p.100. 5 Griswold i7. Connecticut, 381 US 479 (1965). 6 Poe v. Ullman, 367 US 497, 552 (1961). ' Griswold v. Connecticut, op. cit. at 486. 8 Eisenstadt v. Baird, 405 US 438, 453 (1972). 9 Mary Ann Glendon, The Transformation of Family Law (Chicago, 1996), p. 189,192.
'o Mary Ann Glendon, Rights Talk (New York, 1991), pp. 9, 14. II id. at 48.
12 Laurence Tribe, American CConstitutional Law (Mineola, NY, 1979), p. 987.
13 J. Budziszewski, "The Revenge of Conscience,"First Th/s (June/July 1998), pp. 24-25.
14 Mary Ann Glendon, The Transformation of Family Law (Chicago, 1996), p. 298.
ls Ibid., pp. 295, 298-99.
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