News & Events

Posted Dec. 3, 2010

Law Should Encourage Marriage, Sears Says


American law and public policy must encourage marriage, former Georgia Supreme Court Chief Justice Leah Ward Sears LL.M. ‘95 said at the Law School Wednesday.

“A growing body of scientific evidence demonstrates that children suffer when families fall apart,” she said. “I believe it is critically important to base policy on the best empirical evidence available.”

Sears, who was the first African-American female state chief justice in the United States, discussed the marital divide between college-educated and less-educated Americans at an event sponsored by the University of Virginia's National Marriage Project and the Law School.

”Data shows that current trends in family formation and fragmentation do in fact have potentially long-lasting and harmful effects on our children and our communities,” Sears said.

The lack of stable families results in strain on courts and society as a whole, she said.

“Forty years of social science evidence now confirms that the structure that helps children the most is a family headed by two biological or adoptive parents in a low-conflict marriage,” she said.

The increase in the number of families headed by single women has played a major role in the persistence of poverty, according to Sears. Among children whose families make at least $75,000 a year, 92 percent are living with both parents, she said.

And the problem is growing. Sears claims that more than a third of the nation’s children are born to unmarried mothers, the highest percentage ever recorded. Among Latinos, 41 percent of children are born to unwed mothers; among African Americans, 72 percent.

In America, more than 10 million households are run by single mothers, she said.

Sears blames this on a trend in which marriage is adult-centered rather than child-centered —  “promoting and protecting the freedoms of adults to indulge their desires sometimes to the detriment of our children, our nation’s future,” she said.

The definition of family becomes “increasing fluid and confusing,” she said. “We’ve got parents and step-parents and quasi-parents and boyfriends and girlfriends moving in and out of children’s lives at unprecedented numbers.”

Sears, who readily volunteered that she is herself a divorcée, cautioned that she “is sensitive to concerns about judging people without an understanding of how a particular person ended up in the situation they are in.”

“As a woman who came of age at the height of the women’s movement, I really don’t hold any naïve notions about the ‘good old days.’”

Although she advocates for policy changes to promote marriage, Sears said that “the law can never be the creator of a family. It can only be one of its custodians.”

“While the law may insist that a father financially support his children, it cannot mandate his love, his protection and his emotional support. A child-support check required by law is important, but it can never replace a loving father or a committed, responsible and present husband.”

As a judge in Georgia for 27 years, Sears said she often saw the results of broken families in her courtroom and in Georgia’s jails. During her time on the bench, 98 percent of the men on death row were “reared in dysfunctional families headed by just mothers,” she said.

“Marriage may be the best child welfare, crime prevention, and anti-poverty program this country has.

“Marriage brings together the emotional, psychological, spiritual, financial and educational resources of two parents and their respective kin networks,” Sears said. “And just like partners in a business, partners in marriage actually produce more working together than either can produce apart.”

Sears cited former Supreme Court Justice William Brennan: “The genius of the Constitution rests not in any static meaning it may have in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and present needs.”

Brennan’s idea “moves me to advocate for a body of family law that is above all else is responsive to the changing needs of our time,” Sears said.

Policy options include extensions of waiting periods, better counseling for couples and removal of barriers that discourage marriage, such as the so-called marriage penalty tax, she said.

Sears stopped short of supporting a return to fault-based divorces, which require proof of adultery, desertion, cruelty or other behaviors, saying that it would make marriage less appealing in the first place.

When Sears was first appointed as justice in 1992 by Governor Zell Miller, she became the first woman and youngest person to sit on Georgia's Supreme Court.

Reported by tim arnold