Fall 1996, Volume XII, Number 1
Family Law, Public Policy and New Federalism
by Steven K. Wisensale
Historically, the family has served as the fundamental social unit, producing and raising children, caring for the aged and disabled, and socializing its members in the basic values of individual character development and citizenship. Yet, despite being portrayed as the cornerstone of American civilization, the family has received limited attention from the federal government until recently. Even during Franklin Roosevelt's New Deal, perhaps this nation's most expansionist era in federal social policy, the family came up short in at least two important respects.
First, almost all New Deal policies were geared toward individual, not family, dependency. And second, whatever family-oriented measures were adopted, such as AFDC in 1935, no provisions were made for dependent intact families. These two policy choices made in the 1930s would dominate the debate and structure of family policy for more than forty years. In the early 1960s, for example, Daniel Patrick Moynihan reminded policy makers of the important difference between policies focused on the individual and policies concerned with the family. "American social policy until now has been directed toward the individual," stated Moynihan in 1965. "Thus, our employment statistics count as equally unemployed a father of nine children, a housewife coming back into the labor market in her forties, and a teenager looking for a part-time job after school" (Rainwater and Yancey, 1967).
While Presidents Kennedy, Johnson, and Nixon did support the federal government's role in strengthening poor families, and Johnson proposed that black families in particular be strengthened, Jimmy Carter "was the first President to address the family cause generally without class or race qualifiers" (Steiner, 1981). "There can be no more urgent priority for the next administration," Carter stated in 1976, three months before his election, "than to see that every decision our government makes is designed to honor, support, and strengthen the American family" (Steiner, 1981). Two months later he would echo this point and spell out the possible consequences if his advice were to go unheeded. "I believe that government ought to do everything it can to strengthen the American family because weak families mean more government" (U.S. Government Printing Office, 1978). Not surprisingly, it was Carter who issued a nine-point plan on the family in 1976 that called for major federal initiatives, and who convened the nation's first and only White House Conference on Families in 1980. But 1980 was a significant year for another reason: Ronald Reagan was elected president.
By the time Reagan assumed the presidency in 1981, the family had already made its way onto the national political agenda. As a result, the new occupant of the White House was confronted with at least two very challenging questions related to families that could not be ignored. First, what was the status of America's families? Were they strong and stable or weak and vulnerable? And second, what role -- if any -- should government play in addressing the needs of families? That is, where do we draw the line between what families are expected to do and what government is obligated to do? And, more specifically, what level of government (federal, state, or local) is obligated to do what?
Beginning with his inaugural address in January, 1981, combined with his success in getting major cuts in social welfare under the 1981 Omnibus Reconciliation Act (OBRA), Ronald Reagan made it clear to all that government, and the federal government in particular, should not be expected to solve many of the nation's problems. According to his thinking, government was the problem, not the solution. Soon the policies of new federalism (now commonly referred to as devolution), deregulation, privatization, retraction, and retrenchment were rooting themselves deep within the political landscape. Whatever momentum Carter created for a national family policy was quickly shifted into reverse by Reagan.
From a national study of state initiatives in family policy completed in 1990, we learned that during the Reagan and Bush administrations states were extremely active in addressing family issues. More than half the states created special commissions or task forces on families, for example. Thirty-two states passed child abuse and neglect laws, 31 states adopted stronger child support enforcement legislation, 30 states passed special child care and early education laws, 20 states reformed their domestic violence laws, and 18 states enacted legislation to address teen pregnancy (Wisensale, 1990). By the time Bill Clinton assumed the presidency in 1993 and signed into law the nation's first family leave bill, 27 states had already adopted such a policy.
Although George Bush signed the nation's first child care bill into law and placed a heavy emphasis on family values during the 1992 presidential campaign, he also vetoed the family leave bill twice. And although Bill Clinton issued his eight-point plan on the family during the 1992 primaries and continues to remind voters that the Family and Medical Leave Act was the first bill he signed as president, most family policy continues to emerge from state and local governments, not from Washington.
Trends in Family Policy
There are at least four major trends in family policy, particularly at the state level, that can be identified and discussed. First, the definition of the family is changing. More than 150 communities, at least half as many private corporations, and more than 20 major universities have adopted domestic partnership policies that treat married and unmarried couples equally, in terms of personnel benefits such as health insurance, leaves of absence, and dental coverage. Equally important, Hawaii is near a court ruling on same sex marriages which could have major implications for the nation as a whole.
Second, divorce laws and their potential consequences are being reconsidered. For example, several states have moved in the direction of replacing no-fault divorce with traditional divorce. Still others have focused on the consequences of divorce by introducing court-mandated divorce education programs in an effort to make parents more sensitive to the needs of children during and after the dissolution of marriage.
Third, there is an intense struggle going on in state legislatures and courts over parental rights versus children's rights. Can children divorce their parents? Should minors be allowed to have abortions without their parents' knowledge or permission? Should school teachers be granted parental authority and be allowed to employ corporal punishment as a way of maintaining discipline in the classroom?
Fourth, it appears that parental responsibility laws are growing in popularity among state legislators. For example, in 1995 ten states passed such laws, including Idaho which forces parents to pay detention costs for juveniles, West Virginia which allows parents to be fined up to $5,000 if their child defaces a building, and Louisiana which can fine or imprison parents if their child associates with felons, drug dealers, or street gangs. Perhaps the most severe example occurred last year when a South Carolina judge shackled a mother to her "uncontrollable" daughter for 30 days because the latter had repeatedly been charged with shoplifting, truancy, and burglary.
That the United States lacks a national family policy, and that the states have assumed this responsibility, should not be surprising. This is the era of new federalism or devolution. States are doing more in all areas of the law. Also, because the 50 states had always been responsible for family law throughout our nation's history, it is unlikely that they would buy into a national family policy anyway. And finally, regardless of whether family policy emerges from the state or federal level, it is likely that we will continue to be haunted by George Steiner's quote from 1981: "Family policy is unifying only so long as the details are avoided. When the details are confronted, family policy splits into innumerable components. Ultimately, advocates for children, for women, for the aged, and for special groups among them will go their separate ways."
Steven K. Wisensale is an Associate Professor of Public Policy in the School of Family Studies (U-58) at the University of Connecticut, Storrs, CT 06269-2058. E-mail: Wisensal@UConnVm.UConn.Edu
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Fall 1996 Issue Home | At Century's End | Philosophy & Family Law | Family Law & Policy
Transracial Adoption | Transracial Adoption: Conversation | Book Review | Family Violence
Teaching Gender Issues | Domestic Violence | Mini-Grant Awards
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