No-fault divorce and the road to Goodridge

The same-sex marriage debate is really about children and societal stability, not animus and bigotry.

In November 2003, Goodridge v. Department of Public Health set off a conservative firestorm. The Massachusetts Supreme Court case recognizing a state constitutional gay-marriage right has mobilized the Christian right more than any social issue to date; Ohio’s election results confirm so much. Gay marriage has become the predominant social issue of the day.

While Goodridge awoke a sleeping giant, the truth is that the road Goodridge began well before the Massachusetts plaintiffs filed their complaints in the spring of 2001. With little public uproar, U.S. social policy took a dramatic turn for the worse between 1969 and 1985. In 16 years, no-fault divorce, originally a California experiment, was adopted in all 50 states. The results have been a disaster for society, families and children. More fundamentally, no-fault divorce has undermined the institution of marriage itself.

Before no-fault divorce, marital separation was fault-based. One spouse was required to establish that the other spouse had engaged in adultery, cruelty or desertion for divorce. Naturally, under the fault-based scheme, divorce occurred much less often. Because divorce was difficult, couples had incentives to work hard to maintain, uphold and faithfully invest in their marriage. In contrast, under the present no-fault system, a divorce is granted automatically for any party claiming mere incompatibility. There is no mutual consent required, nor any showing of unfaithfulness, abuse, criminal conviction or like circumstance. As a result, today the marital “contract” is more like an unenforceable, halfhearted, conditional promise than a strong and meaningful lifelong commitment.

Though the fault-based divorce system was not perfect, it did communicate the importance of the marital commitment. The point is not that the government should force people to remain in a marriage at all costs. In circumstances of abuse, infidelity and criminal behavior divorce is an appropriate option. However, the government should make it hard for married people to separate, those with children. Premarital counseling should be mandatory in all states, predivorce counseling should be mandatory in all states; waiting periods should be longer and especially so for marriages with children. Social policy should communicate the gravity of the commitment and reflect its societal importance.

No-fault divorce does just the opposite and the effects are staggering. The divorce rate in the United States has doubled since 1960. Today, approximately one in two marriages ends in divorce and subsequent unions have an even higher rate of legal separation. The financial and social consequences of such a high divorce rate should not be underestimated. Some social science studies have estimated the aggregate direct and indirect cost of nationwide divorce at an astonishing $33.3 billion a year.

More disconcerting is the abundance of social science literature establishing the effects divorce has on children. Depression, aggression and delinquency are more likely in single-parent families. In addition, children from divorced families are less likely to finish high school or college, more likely to use illegal drugs and twice as likely to have a child out of marriage than children raised in a continuous marriage. Moreover, a study in the Journal of Marriage and Family reports that divorce is cyclical to some degree, as children of divorced parents are twice as likely to divorce as children raised by continuously married couples.

But the most disheartening and related consequence of no-fault divorce is its total devaluation of the institution itself. The message that accompanies no-fault divorce is clear. Marriage is about my autonomy, happiness and desires, having little to do with my children, my spouse or society as a whole. Accordingly, I can sever the relationship whenever I want simply because I feel like it. Under no-fault divorce, marriage between one man and one woman is no longer an institution that is recognized because it indisputably provides the best relationship in which to raise children and produce healthy, productive citizens. Instead, marriage is viewed as a mere license to love.

In this light, the Massachusetts Goodridge decision, though legally incorrect, is not all that surprising. Indeed, Goodridge is a natural consequence of no-fault divorce and the cheapening of marriage that accompanies the decision. While the fight to defend traditional marriage is of the utmost importance at this time in the country’s social history, the Christian right needs to understand that the issue goes deeper than defining marriage as between one man and one woman.

It is about understanding and emphasizing the importance of the institution as a whole. As social policies, no-fault divorce and same-sex marriage hinge on the same fundamental questions: What is marriage, why is it important and why does the government recognize it? If the discussion is expanded, maybe the left will understand that the same-sex marriage debate has nothing to do with animus or bigotry and everything to do with children and societal stability.

Bryan Freeman welcomes comments at [email protected]