Wednesday, October 13, 2004
I was making this argument at least five years ago. One of the many reasons I can't get on the FMA train (along with the fact that this is an inappropriate subject for the Constitution) is precisely that I think the fight to prohibit the redefinition of marriage as a unisex institution is deeply hypocritical. The push for same-sex marriage is not the cause of the decline of the marriage culture in America; it is a symptom. Why are so many focused on attacking the symptom while largely ignoring the cause? Because the symptom - same-sex marriage - is the subject of advocacy by an often-despised minority, while the cause - no-fault divorce - is something that affects the majority of the citizenry (given the prevalence of divorce in our society, I'd bet a majority of the citizenry falls into one of the following categories: divorced, parent of a divorcee, or child of a divorcee). I'm a Jew, but the metaphors that spring to mind are all Christian: casting the first stone at the adulterer, pointing out the mote in our neighbor's eye while ignoring the beam that is in our own, etc.
Saying there's a beam in our own eye doesn't mean the mote doesn't exist. Same-sex marriage would be a mistake. But it's not a mistake we're likely to make freely. The only states that have even talked about redefining marriage this way have been forced to do so by the courts. The solution to that problem is to punish the courts - systematically, by reducing their power, and not in an ad-hoc fashion by exempting this or that law from review or amending the Constitution every time they rule in a way the people dislike. Believe me, they'll get the message; they sure did in the 1930s.
But to reclaim a culture of marriage, we've got to focus on *marriage* and not on disparaging gay people or portraying them as a threat. And that means focusing primarily on divorce. No-fault divorce has been a disaster for women, whatever the feminists think. It has meant a free pass for men to abandon their wives, and leave their ex-wives with the primary burden of raising children (which they will always have; that's deep-wired biology, not culture). That is not something that can be rectified by joint custody arrangements (which can be horribly burdensome to children, and which many men do not seek) nor by "deadbeat dad" legislation (the burden of childraising is not strictly financial). There's overwhelming evidence that the prevalence of divorce has been bad for women (I think it's been bad for men, too, but not necessarily financially). People have talked about culture as "serial monogamy" - a version of polygamy where you can marry multiple times, but not simultaneously - and like polygamy but from the opposite direction, serial monogamy has harmed women and had profoundly damaging consequences for the social structure that underpins a healthy, democratic society.
We have got to restore the distinction in law between annulment and divorce. I'd be favorable to a liberal annulment law - i.e., relatively easy dissolution of marriage when there are no children. But this should not be an option once children are involved. Then, the only option should be divorce, and divorce should only be possible upon a finding of fault - adultery, cruelty, abandonment, something substantive that would have to be demonstrated in court. And society - and maybe even government; I'm open to the idea - should do whatever it can to promote reconciliation within marriage.
Would there still be divorce in such a world? Sure - there was divorce before no-fault; it wasn't unheard of. There will always be jurisdictions that maintain no-fault divorce (Nevada, presumably, if nowhere else) and there will be judges who are more or less liberal in defining "cruelty". But we're talking about changing a culture, not building a machine. Should divorcees be stigmatized? No - you don't stigmatize someone who's suffering, and frankly, even the party at fault in such a proceeding is suffering. Will there be more people trapped in unhappy marriages in such a world? Maybe; I don't know. The question turns on whether people who today would divorce, but in a world without no-fault would be stuck together (or stuck in adulterous non-marital relationships like Spencer Tracy and Kate Hepburn's) are happier today than they would be in a no-fault world. I don't know the answer to that. I know that a high percentage of divorcees get divorced again, suggesting that divorce isn't only breaking up bad marriages, but making it harder for some people to stay married regardless. But *even if* ending no-fault would mean that there are more unhappy marrieds, that might well be worth it *if it meant fewer troubled children.* And there is considerable evidence that children do better raised by parents who may not have a happy marriage but stay together for the sake of the kids than they do raised by parents who chose to divorce.
Divorce sends a profound message to children about the priority of the self over others, parents over children, happiness over responsibility. It teaches them about the impermanence and untrustworthiness of the world. The anxieties that divorce produces in children never go away. I don't want to overstate the case; plenty of children of divorced parents turn out healthy, well-adjusted, what-have-you. I consider myself to be so (most days, anyhow). But no child ever says, "I hope my parents get divorced" or "I'm glad my parents got divorced" - even children in truly abusive homes, where the only realistic solution is indeed separation from a dangerous parent, what the children want and need is for the parent to change, not for the family to dissolve.
If we had a healthy marriage culture in America, I don't think there would be any push to redefine marriage as a unisex institution, because we'd understand in our bones what marriage is for. Would there still be a push to create *some* kind of fair legal framework for gay families? Perhaps, and if there were I'd be pretty favorably inclined. If we don't want gays to live in the closet, then we have to think seriously about how they can live in the light, and that means thinking about how gay families are supposed to live. And I don't want gays to have to live in the closet; the closet is a dark and loney place, and a dangerous one to boot. But that would be a very different discussion than the one the courts are having about marriage today - a discussion about wrongs, not rights, about how to reduce suffering and promote health and virtue, not about how to mandate equality.
Finally, an open question to Andrew Sullivan: I can't tell if you're being sarcastic. Here's what Sullivan wrote about the above-linked article:
DIVORCE IS NEXT: Kudos for one evangelical for conceding that the battle to keep civil marriage an exclusively heterosexual privilege in the name of traditional values is hard to sustain given the high rate of straight divorce. So ... tighten up divorce! Why not combine state constitutional amendments "defending" marriage with bans on no-fault divorce? Well, you know the answer.
So here's my question: are you *predicting* that an attack on no-fault divorce is coming ("divorce is next" is how you title this item) and hence warning straights, in effect, "first they came for the gays"? Or are you mocking the Christian Right for *ignoring* divorce and focusing only on sins their flocks would not commit ("Why not combine . . . amendments 'defending' marriage with bands on no-fault divorce? Well, you know the answer.")? Are you attacking your opponents for *not* really caring about marriage, or warning us that they *do* really care? And what do you think we *should* do about divorce? Are you happy that no-fault divorce exists, or unhappy? Is freedom to exit marriage at will something important to how you understand marriage, or something that undermines that understanding? What, finally, does marriage *mean* to you, Mr. Sullivan, since you want it so badly. Just a basket of goodies? Or social approval of your relationship? You have devoted much of your public life to advocacy to redefine marriage to encompass your relationship with a hypothetical man who asks you to marry him. In the final analysis, and honestly, *why*?