DAILY EXPRESS
Indecent Proposal

by Steve Sanders  
Only at TNR Online | Post date 01.05.05

 
Email this article.

This Valentine's Day, more than 1,000 couples are expected to crowd into the Alltel Arena in North Little Rock to renew their marriage vows. Hosted by Arkansas Gov. Mike Huckabee and his wife Janet, the couples will hear from gospel star CeCe Winans, radio minister Crawford Loritts, Christian marriage guru Dennis Rainey, and Orthodox Rabbi Daniel Lapin, whose group Toward Tradition battles the "sinister techniques and false ideas" of "secular fundamentalists."

The catch is that these won't be run-of-the-mill marriage vows. Those attending will be binding themselves into more divorce-resistant "covenant marriages"--which require that couples undergo premarital counseling, declare their intent to stay together until death, and sign an affidavit to seek marital counseling if needed. Divorce is available only if a spouse has committed adultery, physical or sexual abuse, or a felony, or if the couple has lived apart for two years.

Covenant marriage first made news in 1997, when it was legalized in Louisiana. So far similar laws have emerged only in Arizona and Arkansas. But efforts to pass new measures are gaining momentum. Since 2003, bills have been introduced in Indiana, Iowa, Missouri, Texas, Utah, Virginia, and West Virginia. Flush with what they see as a post-election resurgence of "moral values," proponents sense new opportunities. A group called the Covenant Marriage Movement has asked churches to declare February 13 "Covenant Marriage Sunday," and it plans a national summit in April. Huckabee announced his "fun-filled, romantic evening" of state-sponsored preaching and conjugal renewal less than a week after last November's vote.

 

In covenant marriages, advocates see a return to the days when marriages could be dissolved only due to one spouse's "fault," and to the lower divorce rates that prevailed for much of that period. In fact, they're only half right. Covenant marriages may return us to the days when fault-based divorce laws governed marriage. But they will be the days just before this system collapsed under the pressure of social reality.

Politicians and religious activists like to imply that easier exits from matrimony, so-called "no-fault" divorce laws, were foisted on society by atheists and libertines. But divorce got easier because married people--and particularly married women, who found themselves less economically dependent on their husbands thanks to new opportunities outside the home--insisted it become easier.

As a practical matter, unhappily betrothed couples did this by actively undermining the law. Many simply did or said whatever was necessary to win a judge's finding of fault. Perjury and collusion were rampant, often with a judge's tacit approval. In one example that's a favorite among editors of family-law casebooks, a divorce-seeking wife not only encouraged her husband's adulterous affair, she sent flowers to the illicit love nest.

Ironically, it was Ronald Reagan who, as governor of California, signed the nation's first no-fault divorce law in 1969. As Barbara Dafoe Whitehead, author of The Divorce Culture, has written, the ensuing revolution was more cultural than legal. Under the new ethic of family life, "individuals had a primary obligation to pursue their own emotional well-being in family relationships and especially marriage." By the time all 50 states adopted some form of no-fault divorce in the early 1980s, they had simply brought legal norms into line with social mores. "If divorce was a vehicle for the pursuit of individual emotional well-being," Whitehead adds, "then there was no legal rationale for holding one spouse blameworthy."

It's not hard to see that, if covenant marriage becomes more widespread, people will continue to find ways to separate, just as unhappy couples once resorted to conniving to undermine "fault" divorce. (And just as a smoker who doesn't really want to quit will find ways to smoke after entrusting his cigarettes to a friend.) They'll just be forced to wait longer before executing their escape, which will produce a similar popular backlash and pleas for legislative reform.

What advocates of covenant marriage largely overlook is the fact that most marriages dissolve not because people lack the willpower to make them work (though that's probably true in some cases), but because they simply don't want to be married, at least not to the person they happened to wed. The reality is that too many people are getting married who shouldn't. In Arkansas, for example, the divorce rate is more than 50 percent above the national average. But the marriage rate is almost twice the national average.

So the real question isn't how to force people to stay married, but how to prevent divorce candidates from getting married in the first place. Covenant marriage advocates make a token nod at this problem with their premarital counseling requirement, which typical involves a clergy member or professional counselor lecturing the couple about the seriousness of their undertaking. But if they were really interested in promoting healthier marriages, rather than simply more marriages, covenant proponents would go much further in this vein. One possibility would be to put teeth in the pre-marital counseling requirement, giving counselors the ability to veto covenant marriages for couples they regard as high risks. Or states could follow the example of Iowa, where legislators last April approved a requirement that all couples undergo twelve hours of premarital counseling or wait longer for a standard marriage license.

Another idea would be to impose stricter age requirements. While most states allow people to marry at 18, teenagers can wed with parental consent as young as 16. Youth at the time of marriage is highly correlated with later turbulence, and studies show teen marriages are far more likely to end in early divorce. The obvious reason is that marriage works best when it's the product of a mature and informed decision; too often teenagers aren't prepared to make one.

These kinds of reforms are unlikely to happen, of course. After all, for those who insist that "marriage works best when the people trying to make the institution work are in the hand of the Creator," as Huckabee's "marriage expert" Rainey puts it, informed decisions aren't a very high priority. But then neither, apparently, is the institution of marriage.

Steve Sanders is a law student at the University of Michigan and maintains the blog Reason and Liberty.