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275 notes Chapter 1 1 Consider, e.g., e. J. graff, What Is Marriage For? (Boston: Beacon, 1999); Judith Stacey, In the Name of the Family: Rethinking the Family in a Postmodern Age (Boston: Beacon, 1997); linda McClain, The Place of Families (Cambridge, Mass.: Harvard University Press, 2006); Martha Fineman, The Autonomy Myth (london: new Press, 2005); and Stephanie Coontz, Marriage, a History: From Obedience to Intimacy , or How Love Conquered Marriage (new York: viking, 2005). 2 Consider, e.g., linda J. Waite and Maggie gallagher, The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially (new York: Broadway, 2000); David Blankenhorn, Fatherless America (new York: HarperCollins, 1996); David Popenoe, Life without Father: Compelling New Evidence That Fatherhood and Marriage Are Indispensable for the Good of Children and Society (new York: Free Press, 1996); and kay S. Hymowitz, Marriage and Caste in America (Chicago: Ivan r. Dee, 2006). 3 Compare David Blankenhorn, The Future of Marriage (new York: encounter, 2007), with Jessie Bernard, The Future of Marriage (new York: Bantam, 1973). 4 alan Wolfe, One Nation, After All (new York: Penguin, 1999), 9–10, defines the freedom coming with modernity as “the freedom to construct one’s own life as one best sees fit. Concretely, that means not accepting god’s commands regarding right and wrong, but developing one’s own personal ethical standards. It means thinking of marriage as a union of consenting equals to be dissolved when it oppresses one or both of the parties involved.” See also Michael Sandel, Democracy’s Discontent (Cambridge, Mass.: Harvard University Press, 1996). 5 For the first part of this shift, see emile Durkheim, “The Conjugal Family,” in Durkheim on Institutional Analysis, ed. and trans. Mark 276 noTeS To PP. 2–4 Traugott (Chicago: University of Chicago Press, 1985), 229–39; and for the second part, see law Commission of Canada, “Beyond Conjugality” (2001), http://www.samesexmarriage.ca/docs/beyond_ conjugality.pdf; James Smith, Beyond Monogamy (Baltimore: Johns Hopkins University Press, 1974); Mary ann glendon, The Transformation of Family Law (Chicago: University of Chicago Press, 1989), chap. 2; and Fineman, Autonomy Myth, 99, 106–8, 134–36. 6 James Q. Wilson, The Marriage Problem (new York: HarperCollins, 2002), 83–105; law Commission of Canada, “Beyond Conjugality,” xxiii; and robin Fretwell Wilson, ed., Reconceiving the Family (Cambridge : Cambridge University Press, 2006), chaps. 14–17. 7 glendon, Transformation of Family Law, chap. 4; and american law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations (Philadelphia: american law Institute, 2002), chap. 6. 8 Michael Walzer, Spheres of Justice (new York: Basic Books, 1983), 218–19. 9 David Popenoe, Disturbing the Nest (new Brunswick, n.J.: Transaction , 1988), chap. 7; and glendon, Transformation of Family Law, 291–98. 10 american law Institute’s Principles of the Law of Family Dissolution is an american version and follows the policy of “Beyond Conjugality,” though without its lengthy justification for the policies. 11 law Commission of Canada, “Beyond Conjugality,” 7. also graff, What Is Marriage, 36–48, 113–17. 12 law Commission of Canada, “Beyond Conjugality,” 12–17. 13 law Commission of Canada, “Beyond Conjugality,” 113. See also McClain, Place of Families, 191–215. 14 Blankenhorn, Future of Marriage, 12–21, surveys journalistic and legal opinion on the matter of what marriage is and concludes that most think that “marriage is exclusively a private relationship, created by and for the couple, essentially unconnected to larger social needs and public meanings.” See also McClain, Place of Families, 151–54; Pepper Schwartz, Love Between Equals (new York: Free Press, 1995), 10–11, 181–85; graff, What Is Marriage, 70–71, 113–17; robert P. george, “What’s Sex got to Do with It?” in The Meaning of Marriage, ed. robert george and Jean Bethke elshtain (Dallas, Tex.: Spence, 2006), 145; glendon, Transformation of Family Law, 2, 144–45, 297. 15 John Witte, From Sacrament to Contract (louisville, ky.: Westminster [3.238.62.119] Project MUSE (2024-03-28 12:16 GMT) noTeS To P. 4 277 John knox, 1997), cf. 3–4 with 10–11 and chap. 1 with chap. 5 to see the outer limits of this transformation. See also Wilson, Marriage Problem, 88 (“The enlightenment laid the groundwork for replacing a sacrament with a contract and then a contract with an arrangement ”); and glendon, Transformation of Family Law, 26–34. 16 Cf. John locke, Second Treatise of Government (henceforth 2T), in locke, Two Treatises of Government, ed. Peter laslett (Cambridge: Cambridge University...