In a recent interview about her latest book, Phyllis Schlafly said that there will be no solution to the problem of expansive out-of-control government without a restoration of the family. She is entirely correct, but I would go a step further: While a lot of cultural forces have severely damaged the family, it will not be rejuvenated until divorce is at least sharply restricted. To be sure, that involves a change in socio-cultural attitudes: not only are we currently confused even about the basic fact that only members of the opposite sex can marry each other, but our era witnesses a trivialization of the meaning of marriage in so many ways. It also requires, however, a sweeping redirection of law—this is something that even “traditional values” conservatives seldom mention.
It is well known that since the 1970s, American law has, by and large, embraced divorce on demand. People may unilaterally cancel their marriage vows for any and all reasons. This, of course, was an easy outgrowth of the sexual revolution of the 1960s and an expression of the ethos of individual autonomy that swept over Western culture. The prevalent rights thinking demanded that intimate decisions such as whether to stay married to someone—and, for that matter, whether to continue a pregnancy—not be “infringed upon” by the state. The “right” to divorce, in effect, was held to exist in a vacuum, just like the “right” to abortion. Little consideration was given to whether in their exercise the rights of others might be trampled on. In abortion it was the right to life of the unborn child, and in divorce it was both the rights of the discarded spouse and especially of the children.
The consequences of ignoring these other rights in divorce have become ever more apparent over time, even though they were readily foreseeable: the impoverishment of suddenly single mothers, emotional damage, and the range of adverse effects consistently experienced in the short and long-term by the children of divorce. The law’s efforts to compensate for the effects of its embracing of the personal autonomy ethic, such as various kinds of child custody arrangements and “get tough” policies for enforcing child support, have been as inadequate as they have been pathetic. As with so many things, the state has tried to use prophylactic measures to avoid getting at the root of a problem it largely created. It will not be dislodged from its position, despite the fact of massive social and economic consequences at a macro-level (e.g., the juvenile delinquency encouraged by family breakdown, the spiraling costs of government programs substituting for the missing breadwinner, and the social costs of teen sexual misconduct and pregnancy spawned indirectly by the absence of a father).
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The Church has left no doubt about the need to be attentive to these neglected rights. In Centesimus Annus, John Paul II singled out as among “the most important” of rights “the right to live in a united family and in a moral environment conducive to the growth of the child’s personality” (#47). This can only be understood as a not-so-veiled attack on civil divorce, which had become widespread. John Paul here indicates that civil divorce not only violates this right, but creates the momentum for family breakdown and a cheapening of the value of marriage. One only has to look back fifty years or so to recall a time when the Church in the U.S. routinely opposed legislative efforts to make civil divorce easier. This was a time before the post-Vatican II upheavals led to some American dioceses buying into “the spirit of the times” and loosening up on annulments.
Some might be inclined to say that at the current time, when there are many more crucial questions tearing at the country we shouldn’t be concerned with divorce. It may even seem a bit quaint to be thinking about divorce when we are facing a veritable attempt to redefine marriage and when the cohabitation revolution has made marriage seem obsolete for so many people. The point is that divorce stands behind so much of the current upheaval. We would not even be facing these other issues if the integrity of marriage had not been undermined by divorce and its fundamental purpose of begetting and nurturing the young by the acceptance of contraception.
Moreover, one wonders if the acceptance of civil divorce was not a significant factor in the expansion of state power in the U.S. After all, if by action of the state a marriage can be ended and a family torn asunder, what powers does the state not have? Of course, the prerequisite for this was probably the rise of civil marriage and of marriage license requirements. If the state’s approval is needed to make a union between husband and wife, what again can it not do? Given different cultural conditions—if secularism had not taken hold (and even infiltrated religious bodies)—the most preferable approach would be to remove the state from the marriage business entirely and treat marriage as strictly a religious matter. The best that the present situation permits us to do, from a legal and public policy standpoint, is to work to stimulate a national debate about the wisdom of our current no-fault divorce posture.
That would involve both an attempt to argue about why the very notion and possibility of divorce is anathema to the good of marriage and the family and working to persistently bring before governmental decision-makers and the broader public the voluminous social science evidence (e.g., the Wallerstein studies) about the destructive effects of divorce. It would also involve lobbying efforts around the country to return to a fault concept of divorce—if a breakthrough can be made on that, over time the grounds could be narrowed more and more—and to enact “covenant marriage” laws (wherein marrying couples commit themselves to undertake serious marriage preparation and legally agree to waive their “right” to no-fault divorce and promise to make reasonable efforts to persevere in their marriage and seek help should difficulties arise). These are quite imperfect solutions, but they are a beginning and, considering the teaching effect of law, could actually help to motivate more responsible marital decisions by couples. The ultimate aim—although, realistically, it would have to be preceded by a significant cultural and attitudinal shift—would be to eliminate divorce as a legal reality.
It goes without saying that while such political efforts are undertaken, others must make a concerted effort to try to change the social and cultural attitudes about marriage and the acceptability of divorce that are at the core of the problem.
Even if one could conceive of a time where the state would once more be out of the divorce—and, for that matter, marriage—business, it would of course still have interests respecting marriage and the family. It could intervene in the family, as Pope Leo XIII said in Rerum Novarum, to stop “grave violations of mutual rights” (#14)—that is, it must keep peace, protect family members from genuine harm from within, and make sure that human dignity is not undermined—and must be concerned about regulating property relations, which always are an issue when marriages are entered into or civilly dissolved, and the disbursing of public benefits with regard to families. If it were out of the marriage business, it could also still forbid behaviors, such as sodomy and polygamy, that are destructive to the public good and so effectively thwart versions of “marriages” sanctioned by certain religious bodies (e.g., the nineteenth century Mormons and the churches that permit same-sex “marriage” today). For those who would claim that divorce is necessary for the very purpose of protecting partners—especially wives—from harm, I would respond that no-fault divorce has hardly been successful at that. This is seen by the heightening problems of intra-marital violence in recent decades. In fact, no-fault divorce and the entire spirit of lessened marital commitment that it entails have almost certainly spawned more of this. Moreover, there are legal solutions short of divorce to address this, such as legal separation from bed-and-board.
How can one talk about changing the libertarian divorce laws—much less the divorce culture—in the Age of Obama, when the national administration and the ruling political party is pushing the most permissive sexual and family agenda in American history? There is no place to work from but the ground up, and we should always keep in mind that the bright future of new historical ages is often fashioned in the throes of a troubled and declining socio-cultural era.