From No-Fault Divorce to Same-Sex Marriage:

• Post by: Ryan C. MacPherson
• March 23, 2011

The American Law Institute’s Role in Deconstructing the Family Legislative reforms that have prohibited American courts from finding fault when a man and a woman divorce are now leading the nation toward a situation in which no state would be permitted to deny a same-sex couple’s application for marriage. This turn of events owes its course not so much to special-interest groups, legislators, or judges, but to the academic lawyers of the American Law Institute (ALI). Unlike other advocacy groups, the ALI usually has not submitted amicus curiae briefs to advocate for a progressive judicial ruling. Nor does the ALI have a strong lobbying force before state legislatures. Never has the ALI been party to a case involving family policy. The media seldom reports its activities. Nevertheless, the contribution of the ALI to public policy debates has powerfully swayed family and marriage law. Many of its recommendations have been codified into law throughout the United States. Many of its other suggestions have served as surrogates for binding precedents in cases where judges have turned to the ALI rather than, or in addition to, actual case law for guidance. The results of the organization’s relatively quiet and academically secluded advocacy for public-policy transformation include the solidification of no-fault divorce reform during the 1970s and 1980s, the ascendancy of same-sex couples as publicly recognized partners and state-approved adoptive parents in the 1990s, and the experimentation with same-sex “marriage” laws currently underway. The history of the institute’s work and influence will reveal how no-fault divorce legislation paved the way for academic elites to urge state-creation of same-sex marriage. Indeed, the origins of the ALI, its philosophical foundations, and its success in segregating public policy from private morality not only laid the groundwork for the institute’s central role in the no-fault divorce revolution, but also its po