The world’s major cultural
and religious traditions have historically understood marriage as having three
components: (1) a comprehensive union of spouses—man and wife, (2) an
orientation towards procreation and childrearing, and (3) moral norms of
exclusivity, honor, and permanence.[i]
This relationship is special and tremendously beneficial for society and
individuals. This relationship has a name: marriage. Recognizing the unique and
important benefits of this relationship, government used the name, marriage, in
the law to furnish support and incentives in favor of that special
relationship. Other relationships, like friendship, also benefit society.
However, their benefits are not identical or co-extensive to those of marriage.
In truth, cohabitation has some of the benefits of marriage, but not all;
friendship has some of the benefits of marriage, but not all, etc. So, we give other
relationships different names and fashion policies as a function of those
similarities and differences. Family is the fundamental social unit and
building block of a prosperous society and marriage is the foundation upon
which the family rests.
It is true that marriage has changed over time. Polygamy
has been outlawed. Interracial marriage is legal. We no longer pay dowries or
plan marriages in advance. However, all of these changes did not affect the
fundamental definition of marriage and they had a sort of economic logic about
them.
Today, the special relationship of marriage is under attack.
The law and the media condone the ideas that marriage can be less than a
comprehensive union of spouses, that the procreative and childrearing
orientation of marriage is immaterial, and that marriage need not be exclusive,
respectful, or permanent. Since marriage is under attack, I find myself
compelled to defend it from those who would seek to strip this special
relationship of its rightful title: marriage. In this post, I will address some
of the prominent forces corroding the strength of marriage in America and offer
some solutions.
A. No Fault Divorce
Today, it is easier to get a divorce than it is to fire a
manifestly poor teacher. Before the enactment of no fault divorce laws, getting
a divorce was processed through the adversarial court system. A divorce could
only be obtained through a showing of fault such as abuse, adultery,
abandonment, felony, or other seriously culpable conduct. Many American legal
professionals thought that too many people were perjuring themselves in open
court to obtain a divorce. Today, there
might be less lying in court, but just as much in divorce proceedings. Advocates
for no fault divorce feared that the legitimacy of the court was in danger.
Many academics depicted struggling married couples as having the binary choice
of living in “marital hell” or lying under oath to obtain a divorce. Obviously,
there is another option left out of their arguments: fix what’s broken. In
addition, advocates of no fault divorce argue that men are more likely to
behave in marriage knowing their wife can break it off for any or no reason and
that arbitrary decisions of courts would be avoided. No fault divorce advocates
assured policymakers that the impact on families and children would be minimal.
But, they were wrong.
After a century of stable and low divorce rates, divorces
increased drastically within a decade of enacting no fault divorce laws.
Several studies and published papers support the consensus that no fault
divorce was a major factor in the increasing divorce rates of the last decades.
No fault divorce is frequently economically inefficient. Legal marriage can be
terminated unilaterally at will, when he or she thinks it will benefit him or
herself. Thus, unilateral divorces are frequently selfish and opportunistic. Unilateral
divorces leave fathers unwillingly separated from their children and single
mothers left in poverty. No fault divorce has increased female poverty rates
(homemakers are most disadvantaged), the number of children being left
unsupervised during the day, and the number of children being reared in
single-parent homes. The effects of
divorce on children are straightforward and clearly visible in statistics.
Children with divorced parents are more likely to have pathologies, more likely
to be involved with crime, more likely to become pregnant as teenagers, less
likely to perform well in school, and have less success financially later on in
their lives. No fault divorce has undoubtedly increased the numbers of
disadvantaged children in the United States.
Marriage is more than a contract. However, it is also a
contract. Promises are made to be kept. Legal contracts are made to be
enforced. No fault divorce makes the marriage contract effectively no contract
at all. The notion that a mother could properly renounce her motherhood seems
ridiculous to most people. A mother and her child are family. A mother is always responsible for caring for her
child. Similarly, when a man and a woman marry, they form a new family and they
make solemn covenants with one another. Spouses’ responsibilities to one
another are equally permanent and important as the responsibilities of parents
to their children. The law should give effect to the marriage promises and
protect the unwilling partner. Marriage is a choice for which we should be
permanently responsible.
No fault divorce rests on the false assumption that
marriage is only for lovers, a private matter, and not for parenthood or
children. Barbara Dafoe Whitehead sums up the wide affects of no fault divorce:
Divorce
is not simply a legal mechanism for dissolving marriage but a social and
cultural force that opportunistically reproduces itself everywhere. A high
divorce society is a society marked by growing division and separation in its
social arrangements, a society of single mothers and vanquished fathers, of
divided households and split parenting, of fractured parent-child bonds and
fragmented families, of broken links between marriage and parenthood. The shift
from a family world governed by the institution of marriage to one ruled by
divorce has brought a steady weakening of primary human relationships and
bonds. Men’s and women’s relationships are becoming more fleeting and
unreliable. Children are losing their ties to their fathers. Even a mother’s
love is not forever, as the growing number of throwaway kids suggests.
The divorce culture is at
the root of numerous social ills—a society of individualists with less
commitment and more selfishness. Too often, families are ripped apart for
selfish, shortsighted, impatient, and shallow reasons. Indeed, since marriage
is so easily broken off, courting couples need not take the decision as
seriously as they should.
The proper solution to the no fault divorce issue is to
appropriately balance the government interests of relieving some of the
suffering of marital failure with the more compelling interest of promoting
marital stability. Divorce should not be achievable unilaterally without a
showing of fault. Bilateral divorce should not be obtainable without mediation
and counseling. In the absence of abuse, adultery, or felony, courts should
inquire as to whether one or both parties have engaged in such misconduct as to
permanently and seriously hinder the ability of the couple to function as a
family. “It is not only large affairs, which produce trouble. The continuance
of overbearing and vexatious petty treatment of one partner by another
frequently is more serious in its disruptive character than would be larger
differences, which would be discussed and settled.”[ii]
The fines and punishments for perjury, collusion, and fraud should be severe.
B. Portrayals of “Marriage” and Romance
in the Media
Television shows, films, music, and pop literature are
not all bad. The very presence of romantic themes in the media is not the problem.
It is the message the media sends about romance and sex (and violence for that
matter). Hollywood and the media industry too often condone one-night stands,
shallow relationships, sex before marriage, immodesty, unrealistic romance, etc.
Hollywood focuses disproportionately on youth and often promotes consumerism—fancy
cars, expensive clothing, bling, etc. Vile pornography is a multibillion-dollar
industry and is available to anyone at the click of a button; in fact, around a
third of boys report it is their main source of sex education. Reality shows are harmfully unreal. The
celebrated lives of celebrities are disproportionately plagued by selfish
romance and divorce. Certainly, Hollywood and the media industry too often
corrode healthy and moral understandings of sex, procreation, marriage, family,
and love.
Pornography must be regulated. Otherwise, I haven’t any thought
out legal solutions to dispense with sponsorship of immorality in the media.
Perhaps this can only be defeated by a change in consumer demand and by raising
our voice.
C. Same-sex Marriage
Marriage, as an institution, is about more than
affection. Marriage is about preparing for and rearing children. Proponents of
same-sex marriage are not oriented towards procreation and thus, the benefits
of same-sex union are automatically not
co-extensive and equal to those of traditional marriages. Those who seek to revise
the definition of marriage frequently argue that same-sex marriage will have no
effect on the strength of traditional marriage. Just like the past proponents
of no fault divorce who made the same argument, they are wrong. No fault
divorce and the media often promote the notion that marriage is all about
affection. Same-sex marriage would add to that harmful advocacy. Affection is
an emotion. Marriages based solely on emotion will be more instable (as
emotions are) than marriages with an orientation towards childrearing. No man
is an island. The law affects the public’s view of morality and is especially
detrimental to the less educated, broken families, or otherwise disadvantaged
demographic. As long as true marriage is supported by policy, love, knowledge,
success, virtue, and strength will accumulate in families. Children deserve to
be born into a stable marriage. Children born to married parents, who stay
married, outperform their peers in every (or almost every) measurement of
wellbeing and success. Extended families with low divorce rates are more
cohesive and successful. When marriage is about parenthood as much as it is
about affection, more children will be born into this advantageous situation.
But, when marriage is based only on affection, there will be more divorce, less
unified families, less responsible procreation, and more children disadvantaged
by instability of their family—such will lead to higher crime rates, poorer
educational outcomes, poorer economic productivity, etc.
The Supreme Court recently granted certiorari to two
cases dealing with same-sex marriage. Presumably, any justices who seek to
declare same-sex marriage as a constitutional right will invoke the Equal
Protection Clause and the Due Process Clauses enacted in the Fourteenth
Amendment: “[No] state [shall] deprive any person of life, liberty, or property
without due process of law; nor deny any person within its jurisdiction the
equal protection of the laws.” Where the Equal Protection Clause or Due Process
Clause is at issue, the courts will apply one of three levels of scrutiny:
rational basis, intermediate scrutiny, or strict scrutiny (the latter two being
“heightened scrutiny”). Under current jurisprudence, the Equal Protections
Clause triggers heightened scrutiny when the government, through “prejudice,”
differentiates people who are “insular” or “discrete” minorities unable to
avail themselves of the political process. The “Substantive” Due Process Clause
triggers heightened scrutiny where a “fundamental right” is denied a person.
The current jurisprudence of “heightened scrutiny” is a
result of judicial activism and sham judicial opinions. One of the fundamental
objectives of the Constitution was to separate political powers between the
three branches: executive, legislative, and judicial. Where the executive and
legislative branches’ powers overlap, the Constitution addresses it specifically
(e.g. veto and overriding the veto). However, there is no overlap between the
judicial and legislative. The prerogative of judges is to interpret the law as
it is made by the legislature. All legal
instruments, including the Constitution, statutes, and contracts, are to be
enforced as understood by the drafting parties.
In truth, substantive due process is an oxymoron.
Substantive and procedural rights are separate. Procedural rights constitute
the right to a fair and speedy trial. The notion that the Due Process Clause
has substantive rights—e.g. the right to marry, the right to contract, etc—has
no basis in the language of the Constitution or the Clause’s pre-constitutional
history. Judges can, almost without limit, declare anything they want to be a
right according to their own political views so long as it can be associated,
however tangentially, with some explicit right granted by the Constitution.
Substantive due process, in addition, has an ignoble history. Judicial activist
judges used it in Dred Scott (holding
that slaveholders had a legal right to own their slaves perpetually), Lochner, and Roe v. Wade. Substantive due process should be discarded as the
sham that it is. The most important precedent is the first one—the original
understanding. The Equal Protection
Clause also allows judges nearly unlimited power to legislate according to
their own politics by defining what is “prejudice” and what is a meaningful
differentiation, what is morality and what is mere stereotype. It too should be
discarded, according to original understanding, and only minorities
specifically protected by the Constitution should incur judicial review (e.g.
race, nationality, and religion).
Even with the current jurisprudence, the people’s right
to define marriage as applying only to a man and a woman is the better
argument. Substantive due process is not at issue because the Court has never
recognized a right of same-sex marriage. Equal Protection is not triggered
because anyone can marry anyone of the opposite gender in good faith. The law
applies equally to everyone. The Equal Protection Clause was intended to apply
to race. Same-sex attraction is not genetically immutable (see identical twin
studies and genetics studies). The Court may abandon judicial restraint and
announce a novel “fundamental right” to marry as one wishes or they might
contort the law to assert that it somehow discriminates against persons based
on gender. In either case, the advocates of traditional marriage would have to
prove that opposite-gender only marriage laws support either an important or
compelling government interest and that the law must be narrowly tailored to
accomplish that government purpose.
I can think of no more compelling interest than
supporting the strength of biological families in the United States. As the
fundamental unit of society, strong families mean lower crime, better
education, more productive economy, less poverty, healthier population, and
even better national defense. Strong families are a much more compelling
interest that diversity in higher education, which has been held to be a
compelling interest. Perhaps the best argument against limiting marriage to a
man and a woman is that it allows couples with no intention of having children
to marry and enjoy the benefits of marriage. Thus, the law is overbroad. However,
the law only needs to be narrowly tailored—it should not need to be the least
restrictive means of accomplishing the government objective. Indeed, it would
be administratively ineffectual to separate those who intend or will eventually
intend to procreate and those who will not.
Marriage should be defined in the law as having three
components: (1) a comprehensive union of spouses—man and wife, (2) an
orientation towards procreation and childrearing, and (3) moral norms of
exclusivity, honor, and permanence. Gay marriage attacks the first and second
components of the definition of marriage. Marriage is a legitimate legal
distinction from same-sex unions because the benefits of traditional marriage
are not co-extensive or identical to those of same-sex unions. Legislatures and
voters should be able to make meaningful distinctions in the law to promote
welfare, morality, national security, and health.
D. Diminishing Influence of Social
Institutions and Government Policy
As a society, we are becoming increasingly more
individualist and less communitarian. The generally secular government is
taking up roles traditionally filled by religion, charities, and family.
Multigenerational families are becoming less cohesive. The family used to
provide the safety net for Americans; now, the government takes that role. The government has many pro-family policies.
However, there are other policies antagonistic to motherhood and family (e.g.
the “Mommy Tax” explained by Ann Crittenden—google it). City planning is such
that people can live in the suburbs, drive their own car, and have no
interpersonal contact except with the occasional sales associate.
E. Radical Feminism
Feminism that seeks to establish
equal opportunity and treatment for women in the law, politics, and the
workplace has my wholehearted support. However, feminism that seeks to put
career above motherhood, to depict man and woman as competing, and to
characterize biological differences between men and women as inconsequential is
extremely problematic for the family. Such notions are unfortunate. They are
scientifically and politically incoherent. Fortunately, radical feminist
thinking is losing ground and is increasingly viewed as an excess of the great
benefits of the feminist movements of the last century.
In conclusion, strengthening the traditional family is
the most important objective of government. Family is the foundation of the
nation. Marriage is the foundation of families. Laws that incentivize and advantage
the traditional, conjugal marriage achieves the objective of strengthening
families more effectively than any other government policy. Marriage is the
word describing a relationship with (1) a comprehensive union of spouses—man
and wife, (2) an orientation towards procreation and childrearing, and (3)
moral norms of exclusivity, honor, and permanence.
