John Witte, Jr.’s Contributions to the Study of Sex, Marriage, and Family Law
Helen M. Alvaré
The following is an adapted excerpt from the chapter “John Witte, Jr. Contributions to the Study of Sex, Marriage, and Family Law” from the book, Faith in Law, Law in Faith: Reflecting and Building on the Work of John Witte, Jr. (2024). Reprinted under Creative Commons Attribution Non-Commercial License (CC-BY-NC). This is part of a series of Literature Highlights dedicated to celebrating John Witte Jr.’s work. Read more here.
Today, the importance of the family to individual and social thriving is well known. It is a subject continually and prolifically investigated by scholars in the myriad areas influencing family relations and functioning: sociology, law, culture, anthropology, medicine, and economics, to name some of the leading arenas. The inverse dynamic is also better known: the relationship between family fragility or breakdown and the decline of individual and social welfare. At the same time, especially in many of the most prosperous nations, even long-held and bedrock family norms and patterns are queried and challenged. Given general agreement about the individual and social importance of the family, it therefore becomes quite important to know which norms and patterns conduce to individual, familial, and social strength, and which should be resisted or altered.
Not surprisingly, in this environment of significant flux and challenge respecting received traditions, there exists suspicion or even disdain for the roles that history and religion—perhaps especially Christianity—have played in shaping tradition. Both are frequently charged with possessing an insufficient regard for human rights and freedom in the arenas of sex, marriage, and parenting. Furthermore, because of the many forces shaping personal and social choices and outcomes in these arenas, there is a tendency to feel dispirited even about the possibility of understanding contemporary problems, let alone how to promote specific laws, values, and practices that might ameliorate family life, especially in situations affecting vulnerable individuals and groups. It is against this backdrop that one can reflect upon the immense scale of Professor Witte’s contributions to the fields of sex, marriage, and family law.
At a time of mistrust of historical antecedents of, and religious influences upon, current laws in these areas, Witte provides appealing reasons to consult historical and religious subjects. He shows that these can illuminate our contemporary legal and cultural situations and choices. And he further proposes that some might be not only legitimate but fruitful sources for fair-minded, freedom-loving, and compassionate twentieth- and twenty-first-century reflection and enactment. One might call this service that Witte performs a kind of “ressourcement”—an investigation of the wisdom and missteps of the past in order to assist the present. Furthermore, at a time of discouragement about how to assist individuals and families to make choices more conducive to longrun happiness, stability, and freedom—given the myriad and complex factors influencing family welfare—Witte shows that diverse fields of knowledge can and do work together to offer rational and viable ways forward.
For readers who might otherwise be inclined to associate human progress only with more contemporary developments, Witte’s scholarship helps them to grasp that one might better understand, evaluate, and even assist the present in light of its antecedents. Along with his co-editors in Sex, Marriage, and Family in World Religions, he asserts boldly that one cannot know how to evaluate the many changes in these arenas “or how to think about the future if we do not understand the role of the world religions in shaping attitudes and policies toward sex, marriage, and family in the past” (xvii). In his historical presentations, Witte takes advantage of an important epistemological principle: that understanding is better advanced by the use of distinctions, not merely descriptions. Thus, he presents historical family law and culture in ways that help readers understand by distinction the sex, marriage, and family regimes that the West has today chosen for itself—including what it has retained from the past, what it has rejected and replaced, and what it has altered.
Witte is aware that he is attempting to offer summaries that comprehend and distill a massive amount of material while remaining accurate, but he seems to do it with ease. In the introduction to his volume From Sacrament to Contract, for example, he states that its
“principal topical foci are Christian theological norms and Western legal principles of marriage and family life. Its principal geographical focus is Western Europe and its extension overseas to America. Its principal goal is to uncover some of the main theological beliefs that have helped to form Western marriage law in the past, and so to discover how such beliefs might help to inform Western marriage law in the future” (1).
He describes how, during the twentieth and twenty-first centuries, the state and not the church became the principal external authority governing marriage and family life. At this time, movements arose toward recognizing far more marital pluralism and private ordering. Both within and outside marriage, there developed a focus upon autonomy, privacy, individual sexual gratification, equal protection, and personal happiness. Witte paints a rich picture showing how these twentieth- and twenty-first-century shifts ultimately instantiated the “contractarian model” of marriage, a body of ideas launched during the Enlightenment, “elaborated theoretically in the nineteenth century, but not implemented legally until the twentieth century.” While this model was too radical for earlier times, he writes, it “anticipated much of the agenda for the transformation of marriage law in the twentieth century” respecting “privacy, equality and sexual autonomy” (11).
One can see this clearly in Western nations’ recent lawmaking and cultural transformations respecting divorce, prenuptial contracts, same-sex marriage, and nonmarital sex. Witte assesses both what is gained and what is lost by the ascendancy of the contractarian model, and helps us understand current misgivings about the present array of family laws and practices, even as much progress has been made toward fairer treatment of women, children, and persons who identify as LGBTQ. He writes that Enlightenment contractarian notions of marriage were designed to improve it, not abandon it, and were a reaction against “paternalism, patriarchy and prudishness” (314-315). Later, however, he writes, the rise of the contractarian model during “the 1950s forward, seems calculated to break the preeminence of the traditional family and the basic values of the Western legal tradition that have sustained it” (309). He often addresses how vulnerable members of the family suffer most from the consequences of this transition, by way of abortion, nonmarital births, divorce, and poverty, and how the contractarian model can neglect the relationship between family functioning and social welfare. Some elements of the model even pose risks to democracy, freedom, and social justice as well. Even as Witte’s conclusions on these matters enjoy support from interdisciplinary and empirical sources, it is no small amount of scholarly confidence and pluck that is required to question the degree of subjectivity and individualism characterizing our contemporary handling of sex, marriage, and parenting and to suggest that this approach has harmed the less privileged to a greater degree. Witte also relies upon history not only to “to take stock of the dramatic transformation of marriage and family life in the world today” (xiv) but also to mine it for wisdom that might assist current problems, as well as to highlight its missteps and later course corrections. This is a contribution to peace of mind.
Many political and cultural voices are inclined to conclude that present problems are both unprecedented and insurmountable. But in Witte’s work, there is neither nostalgia for the past nor unmitigated approval of the present. In short, he evaluates legal and cultural stances both then and now according to the same measure: which assist individual, familial, and social flourishing, especially of the oppressed or weak? This contrasts with contemporary inclinations toward uncritical acceptance of Enlightenment contractarian notions—and rejection of earlier sex, marriage, and family norms—on the grounds that current convictions about human rights and freedoms are unquestionably superior.
Witte observes accurately that family transformations “on a comparable scale to those we face today have been faced before,” (326) respecting matters both large and small. He discusses, for example, the changing balance between the private and social aspects of marriage, the shifting interrelationships between church and state, the wisdom of broad sexual license, the ramifications of multiple forms of family, the distinctions between annulment and divorce, the wisdom of waiting periods before entering marriage, and whether to maintain proportionality between the stringency of processes for entering or leaving marriage. Looking at one of these smaller matters as an example of mining the past to serve the present—waiting periods between obtaining a marriage license and marriage—many states are shortening or eradicating such periods.
Witte notes, however, that there might be wisdom available from the past. John Calvin, for example, “took seriously the need for a delay between betrothals and weddings.” This allowed “others to weigh in on the maturity and the compatibility of the couple, to offer them counsel and commodities, and to prepare for the celebration of their union and their life together thereafter” (Ch. 13). This becomes important today in light of the observed disadvantages of conceiving marriage as so private that couples do not feel themselves supported by, nor answerable to, any social norms. Similarly, earlier insights about the implications of polygamy might also have purchase today at a time when arguments in its favor are gaining some traction in popular and scholarly fora. Witte assists the current conversation by discovering that the rational case against polygamy is at least as old as ancient Judaism. He reminds us that the Hebrew word for a co-wife was “trouble” (35). He also unearths longstanding convictions that polygamy disadvantages the “leftover” men—which can affect the peace of the larger society. It also harms children and, particularly, those women who are very young and/or pressured to marry.
But Witte is also willing to criticize past “wisdom.” For example, in his discussion of older laws concerning “illegitimacy” in The Sins of the Fathers, he observes the unfairness of punishing children for their parents’ giving birth to them outside of marriage, and lauds the later twentieth-century Supreme Court decisions ending such children’s legal disabilities. At the same time, and according to the same metric—children’s human rights and adults’ responsibilities to children—he notes that recent sharp rises in nonmarital births have led to a variety of social, emotional, financial, and cognitive difficulties for the children involved. (The Sins of the Fathers, 160-61;175) Regarding not only nonmarital births but also similarly complex and delicate familial problems, Witte offers this balanced observation about the need for more enlightened solutions: “We cannot be blind to the patriarchy, paternalism, and plain prudishness of the past. Nor can we be blind to the massive social, psychological, and spiritual costs of the modern sexual revolution” (ix).
In a world awash with law reviews and other publications suggesting sometimes sweeping legal remedies for a wide variety of complex problems, Witte’s methodological habit of exhibiting modesty regarding what the law can accomplish is refreshing and realistic. It also explicitly leaves open the possibility that families, civil society, and religions can play important roles in solving various problems plaguing family life. Professor Witte’s suggestions at the conclusion of his volume on nonmarital children are a good example. He disclaims the “neo-puritan path” of legally sanctioning nonmarital sexual relationships while supporting “aggressive” paternity and maternity suits, “stiff payments of child support,” and even tort suits by children whose parents have abandoned or abused them. He concludes: “[g]overnment has no business policing the consensual sex of able adults. But a single impulsive act of conceiving a child should trigger a lifetime of responsibilities to care for that child.” (177) Witte also leaves room for nonstate actors. “[W]e need to find creative new ways of re-engaging our families and neighborhoods, our worship centers and schools, our charities and voluntary associations in the great task of responsible sex and childrearing” (178). Finally, no discussion of the work of John Witte could be complete—or should likely even begin—without highlighting those personal virtues that infuse both his substantive and procedural accomplishments: his unfailingly gracious, hospitable demeanor, his measured and accurate speaking, his generosity in bringing new scholars along and introducing them to experienced scholars, and his convening colloquies and presentations that allow accomplished scholars to meet in an atmosphere of goodwill and fair play.
Family law can be a daunting scholarly arena today. The subjects of sex, marriage, and parenting are innately complex and increasingly controversial. It is easy to write and publish provocative pieces proposing even dramatic breaks with past norms and practices. It is far harder to hew a path that soberly consults and harmonizes history, religion, and myriad empirical sciences, defers to the needs of children and other vulnerable persons, and remembers that the family is inescapably both private and public, both sacred and secular. Professor Witte’s body of work more than successfully navigates this path, and inspires not only emerging but also more experienced scholars to follow in his footsteps. ♦
Helen M. Alvaré is the Robert A. Levy Chair in Liberty and Law at the Antonin Scalia Law School of George Mason University. There she teaches family law and law and religion, and publishes scholarship in both areas. She is also a member of the Holy See’s Dicastery for Laity, Family and Life, and an advisor to its Permanent Observer Mission to the Organization of American States.
Recommended Citation
Alvaré, Helen. “John Witte, Jr. Contributions to the Study of Sex, Marriage, and Family Law”. Canopy Forum, August 28, 2024. https://canopyforum.org/2024/08/28/john-witte-jr-s-contributions-to-the-study-of-sex-marriage-and-family-law/
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