The Real Threat to Marriage

In light of the vociferous and ongoing debate surrounding gay marriage, it’s easy to imagine that self-described “marriage traditionalists” rose up organically in opposition to expanding the definition of marriage to include spouses of the same sex. However, you’d be wrong to think that. The marriage movement—which now claims, erroneously, that the incursion of gays and lesbians into its hallowed halls will weaken the institution—actually began as a response to a real threat to the contract of matrimony: the no-fault divorce.

First introduced by the Bolsheviks as a means of undermining the power of the church in post-Revolution Russia, unilateral no-fault divorce—which is how more than 80 percent of marriages in the U.S. end—eliminates the need for an aggrieved spouse to show that his or her partner has violated the vows of marriage before being granted dissolution. Under the old “fault-based” system, parties seeking a divorce had to provide evidence of one of a handful of marriage deal-breakers, including abuse, abandonment, cruelty, or adultery (and in case you’re wondering, in Pennsylvania oral sex is not considered adultery). It was an admittedly sloppy system, and led to a spike in attorney-sanctioned perjury as couples created elaborate lies to convince judges they met the necessary criteria. In response, some states, including New York, amended their codes to allow for divorce without cause, but it still wasn’t easy. Spouses were required to spend up to two years officially separated before their marriage was declared kaput.

All that changed in 1969, when then-Governor Ronald Reagan—himself a divorcee—launched the divorce reform revolution by making California the second state in the nation to allow unilateral divorces based on “irreconcilable differences.”  (Reagan later called it the biggest mistake of his political career). Other states followed suit, and a spate of no-fault laws in the 1970s led to a surge (triple digits by some accounts) in the number of divorces and gave rise to the traditional marriage movement. (It also produced the so-called covenant marriage, in which spouses agree to severely limit the grounds by which they may divorce each other).

All 50 states now sanction no-fault divorce, making marriage the only legally binding contract that a person can break without the consent of the other party and without facing any penalty. Under those terms it’s almost hard to call it a contract at all.

Proponents argue that no-fault statutes protect women by changing the power balance in a marriage and making men more likely to “behave themselves” because they know their wives can simply walk out. Indeed, there is evidence that the incidence of domestic abuse dropped with the end of divorce “for cause.” But it’s not clear why. The forces that keep men and women in abusive relationships are complex and often have nothing to do with the law (think how many women refuse to press charges against their abusive husbands). Prior to no-fault divorces there was nothing in the law that prevented spouses from leaving one other; and domestic abuse—not to mention abandonment—has always been grounds for unilaterally ending a marriage.

What the “no-fault divorce is good for women” line of reasoning seems to overlook is that divorce goes both ways. Men leave their wives too; and critics of no-fault, including some progressives, say that contrary to expectations, unilateral divorces often leave women holding the short end of the stick. In 2010, when New York was on its way to becoming the last state in the nation to pass a no-fault divorce law, the state chapter of the National Organization of Women spoke out against the measure, arguing that no-fault divorces sap the negotiating power of the least powerful spouse in a marriage (often the wife). Writing for the Daily Beast about her own unsuccessful fight to save her marriage, Beverly Willett, co-chair of the non-partisan Coalition for Divorce Reform, argued that no-fault divorce devalues the non-economic reasons for resisting a spouse’s bid to end a marriage. “We would never stand for arranged marriages, so why do we tolerate unilateral divorce, where the power rests in one person’s hands to vote on behalf of the whole family?” She wrote.

So where do marriage traditionalists fit in? Well for years they focused their efforts on proactively strengthening the institution of marriage by promoting public policies that encouraged long-term commitments—primarily a fight against the no-fault divorce. In its “Statement of Principles” (released in 2000), The Marriage Movement—a coalition of three conservative “pro-family” organizations, including David Blankenhorn’s Institute for American Values—makes no mention of homosexuality at all, or even men and women for that matter, defining marriage as a contract that “creates formal and legal obligations and rights between spouses.” Even at this stage, the marriage movement was one of positive reinforcement, not denial of rights. That changed when marriage traditionalists decided to turn their spears away from the forces that weakened marriage and point them instead at Americans who wished to help them celebrate it.

Thankfully some are beginning to see the hypocrisy in that. “As long as there is no political will around divorce than [sic] it seems like our main concern is keeping gay people out of marriage rather than restoring marriage itself,” wrote Evangelical blogger Matthew Lee Anderson earlier this week. Blankenhorn, previously an outspoken foe of gay marriage, did an about-face last year and has since dedicated himself to building an alliance of pro-marriage gays and straights who are committed to strengthening the institution.

I think that’s a step in the right direction. While only the most committed true believers would argue that we should go back to a system where divorce is granted only in the most extreme cases, holding couples to a two-year waiting period, or penalizing the party who breaks the marriage contract without cause may make people think before they jump impulsively into (or out of) a marriage. After all, what good is a contract if it’s not enforceable? If marriage traditionalists really want to protect the institution, they should recommit themselves to reforming no-fault divorce laws instead of opposing the expansion of the institution of marriage to all couples just because they don’t like the way those couples have sex.