Coming State Battles Over Same-Sex Marriage Could Be Huge Opportunity for Conservatives

Despite the political focus on same-sex marriage, arguably the most disastrous marriage policy – no-fault divorce – was implemented, with bipartisan support, 40 years ago.

However, arguing against the devastation caused by no-fault divorce laws will require conservatives to do some soul-searching about our own failings. If the current rumblings about marriage privatization as a means to resist a Supreme Court mandate on same-sex marriage materialize into concrete policy, it will provide the perfect opportunity for conservatives to contract around liberal divorce laws that undervalue the principle of marital permanence in their own marriages.

What is Fault Divorce?

Prior to the 1970s, most state laws recognized only fault divorce: in order to obtain a divorce, the divorcing spouse had to prove the “fault” of the other spouse in court. In non-legalese, in order to break the marriage contract, the divorcing spouse had to show good reason – wrongdoing by the other party. The grounds for granting divorce differed in each state, but the four most common, legally-accepted reasons were adultery, abandonment, abuse, and felony conviction. The most common reason given today, “irreconcilable differences,” was not accepted as a legal ground for divorce.

While the earliest known no-fault divorce regime was enacted in post-revolutionary Russia in 1918,[1]the first no-fault law in the United States was passed in California in 1969. It was signed by none other than then-Governor Ronald Reagan, reacting to the pain of having to accept a court designation of “mental cruelty” in order to obtain his own divorce in 1948. He later called it one of the biggest mistakes of his political career, but other states followed at whirlwind speed; by 1987 some form of no-fault divorce was available in all 50 states.

The effect of no-fault divorce has been devastating and nearly as immediate as its high-speed implementation. Although proponents insisted that the reforms would not increase divorce rates, and would instead merely make divorce less acrimonious to the benefit of children, the divorce rate nearly doubled from 27 percent in 1965 to 48 percent in 1975, after the vast majority of no-fault laws were on the books.[2] (The New York Times dishonestly quotes the marginal fall in divorce rates from 1979, well after most no-fault laws were in place, to today in support of the policy.)

While there were certainly other factors in play as the “free love” principles of the sexual revolution metastasized in the 1970s, it seems likely that the sudden increase in divorce rates was connected to the liberalization of divorce laws and consequent cultural acceptance of divorce. While fewer than 20 percent of couples who married in 1950 divorced, about 50 percent of those who married in 1970 did so. The American divorce rate, despite going through ups and downs throughout its history, never broke 30 percent until the introduction of no-fault laws.[3]

To be clear, the fault divorce system still allowed couples to divorce under the most extreme circumstances, including violence, substance abuse, infidelity, or abandonment. What it did not do was give legal imprimatur to what are now culturally-accepted, but ultimately frivolous, reasons for marriage dissolution, such as adult unhappiness that does not rise to the level of abuse or infidelity.

Contractual opt-outs for those who want conservative marriages

Although many conservatives have brought up some serious challenges to those advocating the privatization of marriage, there is an upside for conservatives that many neglect: the ability to contract around liberal divorce laws in our own marriages in a privatized system. I’ll confess to having some skin in the game; with my own wedding approaching in July, I would very much like to legally obligate both my fiancé and myself to the traditional marital order. In our “Eat, Pray, Love” culture, which celebrates abandonment of martial vows and family obligations on the heady whims of emotional fulfillment, it would benefit conservative couples to unambiguously lay out from the beginning that “putting asunder” is only an option in the most extreme circumstances.

University of Virginia marriage researcher W. Bradford Wilcox wrote in National Affairs:

In this new psychological approach to married life, one’s primary obligation was not to one’s family but to one’s self; hence, marital success was defined not by successfully meeting obligations to one’s spouse and children but by a strong sense of subjective happiness in marriage — usually to be found in and through an intense, emotional relationship with one’s spouse.

Explicitly placing the principle of permanence at the legal heart of our own marriages would stand as an example to the larger culture, as well as probably helping to reduce the red-state divorce rate. While the Supreme Court bolsters the liberal marriage culture by defining the importance of marriage for those who “seek to find its fulfillment for themselves,” opting out of no-fault divorce will allow conservatives to put their money where their mouths are and place marital stability and children’s outcomes before chasing personal happiness. As the late, great, Andrew Breitbart was fond of saying, politics is downstream from culture. That the Republican front-runner is a twice-divorced unrepentant philanderer should be a wake-up call for all of us that the liberal marriage culture has hit Americans, even those generally in the conservative camp, hard. Regardless of their opinions on privatizing marriage, conservatives should seize the silver lining privatization offers to lead a resurgent marriage culture.

[1] No-Fault Divorce: Born in the Soviet Union?, David Bolas, 14 Family L. J. 31 (1975); “The Russian Effort To Abolish Marriage”, The Atlantic Monthly, July 1926, p. 108-114.

[2] Austin Caster, Why Same-Sex Marriage Will Not Repeat the Errors of No-Fault Divorce, 38 W. St. U. L. Rev. 43, 46 (2010)

[3] Id.

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