No-fault
divorce has turned a bastion of private
life into a colony of the state.
By
Stephen Baskerville
By
all indications, we are gearing up
for a major cultural and political
war over the family. Opposition to
same-sex marriage has tapped a vein
of grassroots outrage that may run
deeper than most observers imagine,
with implications extending to the
welfare state, the judiciary, and
the most fundamental questions about
the role of government. Conservatives
who warn that family breakdown will
lead to civilizational collapse sometimes
seem incapable of recognizing the
fulfillment of their prophecies.
The
family crisis is generally attributed
to deteriorating moral norms stemming
from the sexual revolution. Yet the
warfare over marriage is as much political
as cultural, though basic political
questions are conspicuously avoided:
what precisely is the legal status
of marriage, and what is the appropriate
role of the state in private families
and households? What are the relations
of church and state insofar as each
claims authority over marriage?
Family
scholar Bryce Christensen likens the
family crisis to the Civil War, with
constitutional implications that could
prove equally profound. G.K. Chesterton
once suggested that the family serves
as the principal check on government
power and predicted that someday the
two would directly confront one another.
Same-sex marriage is just one indication
that that day has arrived.
Another is the administration’s plan
to redirect welfare funds for marriage
education. Adapting Clinton-era fatherhood
initiatives, the program is justified
on the principle that marriage is
a public institution conferring public
benefits. “The time has come to recognize
that marriage is a public social good,”
writes Alliance for Marriage President
Matt Daniels. “The health of American
families—built upon marriage—affects
us all.”
Yet
the public nature of marriage is a
truism that requires some qualification.
The common-law tradition has long
treated the family as a preserve of
privacy that is largely off-limits
to government—what Justice Byron White
called a “realm of family life which
the state cannot enter.”
Family
inviolability was never absolute,
but the basic principle has been established
for centuries and most emphatically
in connection with what traditionalists
point out is the unique and foremost
purpose of marriage: raising children.
The private family creates a legal
bond between parent and child that
allows parents (within reasonable
limits) to raise their children free
from government interference. “Whatever
else it may accomplish, marriage acknowledges
and secures the relation between a
child and a particular set of parents,”
Susan Shell writes in The Public Interest.
“The right to one’s own children …
is perhaps the most basic individual
right—so basic we hardly think of
it.”
Federal
courts have long recognized parenthood
as a “sacred” and “inherent, natural
right,” “far more precious than property
rights,” and “for the protection of
which, just as much as for the protection
of the rights of the individual to
life, liberty, and the pursuit of
happiness, our government is formed.”
Shell summarizes assumptions that,
until recently, have been virtually
universal among free societies: “No
known government, however brutal or
tyrannical, has ever denied, in fact
or principle, the fundamental claim
of parents to their children. …A government
that distributed children randomly
… could not be other than tyrannical.
Even if it had the best interest of
society in mind … a government that
paid no regard to the claims of biological
parenthood would be unacceptable to
all but the most fanatical of egalitarian
or communitarian zealots.”
As
a statement of society’s moral consensus
Shell’s point is unexceptionable.
Yet it also illustrates the ignorance
pervading current debates. For current
marriage law has both validated her
point and negated her fact: “No known
government” ever crossed this line
until about 30 years ago, well before
same-sex marriage, when most of the
Western democracies did so. It is
having precisely the consequences
she postulates.
Shell’s
principle also highlights an anomaly
glossed over in official efforts to
reverse family decline. Invoking the
public benefits of marriage to justify
state intervention in citizens’ private
lives and even to define—and potentially
redefine—marriage would appear self-defeating.
“No one would argue that crime and
child poverty in America are not the
business of government,” writes Daniels.
“And no one wants to see the government
turn a blind eye to the social trends
that are doing the most damage to
American children.” Daniels makes
a powerful case, but he never distinguishes
the public’s interest from the state’s.
Government is not a neutral player.
Governments
have always claimed control over marriage,
whether solemnized religiously or
civilly. Some libertarians now propose
privatizing marriage as a strictly
civil contract. Yet whatever the state’s
precise role in marriage formation,
politically it is far less important
than another question. The institutional
strength of marriage—and its connection
with larger issues of public policy—is
determined not by the words through
which a marriage is formed but by
the deeds through which a marriage
is dissolved.
Here
the critical players, as both sides
recognize, are not homosexuals but
heterosexuals. “The problem today
is not gay couples wanting to get
married,” writes Jonathan Rauch. “The
threat to marriage is straight couples
not wanting to get married or … not
staying married.” The demand to recognize
same-sex marriage is clearly a symptom
of how weakened marriage has already
become.
It
is futile to try to assess the strength
of marriage as an institution or understand
its civic role without confronting
its nemesis: divorce. Though traditionalists
decry efforts to redefine marriage,
the fundamental redefinition has already
been effected by the little-understood
system of “no-fault” divorce.
Some
three decades ago, the Western world
embarked on one of the boldest experiments
in its history. With no public discussion
of the implications, laws were enacted
in virtually every jurisdiction that
effectively ended marriage as a legal
contract. Regardless of the terms
by which a marriage is entered, government
officials can now, at the request
of one spouse, simply dissolve it
over the objection of the other and
with no penalty to the moving party.
Maggie Gallagher titled her 1996 book
The Abolition of Marriage. It is difficult
to see how same-sex marriage can weaken
an institution that has been abolished,
nor how a constitutional amendment
can protect a contract that is already
unenforceable.
Divorce
and unmarried childbearing have political
consequences we are only beginning
to understand since they serve as
major engines for the overall expansion
of government. Daniels is undeniably
correct that family dissolution breeds
social ills for governments to solve:
violent crime, drug abuse, and truancy
are directly attributable to family
breakdown and fatherless homes. The
obvious political implications are
studiously avoided. “If we want less
government, we must have stronger
families,” President Jimmy Carter
once remarked, “for government steps
in by necessity when families have
failed.”
Carter
may have perceived the cause and effect
backward, for it follows that government
has a stake in failed families and
a motive to step in and declare failure
when given the opportunity. As Gallagher
points out, this is precisely what
divorce courts do: “No-fault divorce
gave judges, at the request of one-half
of the couple, the right to decide
when a marriage had irretrievably
broken down.”
If
marriage is not wholly private, involuntary
divorce by its nature requires constant
supervision over private life by state
officials. Marriage creates a private
household, which may or may not necessitate
signing some legal documents. Divorce
dissolves not only a marriage but
the private household formed by it,
usually over the objections of one
spouse. It inevitably involves state
functionaries—police and prisons—to
enforce the post-marriage order. Otherwise,
one spouse might continue to claim
the protections and prerogatives of
private life: the right to live in
the common home, to possess common
property, or to parent the common
children. In the roughly 80 percent
of divorces that are unilateral, state
agents are empowered, without further
explanation, to remove innocent people
from their homes, confiscate their
property, and take away their children.
Unilateral divorce dissolves not only
marriage but private life.
Politically,
no-fault divorce did much more than
allow families to self-destruct. It
permitted the state to assume jurisdiction
over the private lives of citizens
who were minding their own business
and turn otherwise lawful private
behavior into crimes. This obviously
carried consequences far beyond family
policy. Previously, a citizen could
only be incarcerated following conviction
by a jury for violating a specific
statute, passed with citizen input
and after deliberation by elected
legislators, that applied equally
to all. Suddenly, a citizen could
be arrested and jailed without trial
for failing to live in conformity
with an order, formulated in a matter
of minutes from limited information
by an unelected judge, that applied
to no one but himself and whose provisions
might well be beyond his ability to
obey. A divorce decree amounted to
a personalized criminal code legislated
ad hoc around each former spouse,
subjecting him to arrest for doing
what anyone else might lawfully do.
Unilateral
divorce thus placed the family in
a legal-political status precisely
the opposite of the original purpose
of marriage. Far from preserving a
private sphere of life immune from
state intervention, involuntary divorce
opened private lives to unprecedented
state control.
The
logic reaches its conclusion in directives
recently published by the American
Law Institute (ALI). This influential
legal practitioners’ group announced
on its own authority that family-law
jurisdiction would henceforth encompass
non-marital private arrangements such
as cohabiting couples, both heterosexual
and homosexual, and indeed all private
homes.
Marriage
defenders expressed outrage, but they
misunderstood the implications. As
they now argue with respect to same-sex
marriage, traditionalists charged
that ALI was undermining marriage
by blurring the distinction between
legitimate marriage and cohabitation.
But ALI was doing much more than this.
Family-law practitioners were using
the toehold they had established in
married households through divorce
law to extend government jurisdiction
into every household entailing an
“intimate relationship,” married or
not. With breathtaking irony, an “intimate
relationship”—which officials reserved
for themselves to define—became not
a status off-limits to government
scrutiny but the exact opposite, one
that gives government an entrée to
exert virtually unlimited supervision
over personal life. The abolition
of marriage led directly to the abolition
of private life.
Compounding
the irony, the factor that now invariably
justifies state intervention into
the private sphere is the very one
that had previously required keeping
the state out—children. As with same-sex
marriage, by ignoring children a plausible
case can be made that divorce harms
no one beyond the couple. Introducing
children changes the dynamic.
Prior
to the divorce revolution, authority
over children had long been recognized
to reside with their parents, absent
some infraction. “For centuries it
has been a canon of law that parents
speak for their minor children,” wrote
Justice Potter Stewart. “So deeply
embedded in our traditions is this
principle … that the Constitution
itself may compel a state to respect
it.” This too has been not only abrogated
but directly inverted by divorce law,
which proceeds on the opposite principle.
As one analysis observes, “The child’s
best interest is perceived as being
independent of the parents, and a
court review is held to be necessary
to protect the child’s interests.”
Divorce allows one parent to surrender
both parents’ decision-making rights
to the state.
As
many have observed of marriage itself,
the introduction of children into
marital politics brings pressures
for gender differentiation. Traditionally,
as Allan Carlson points out, governments
set the terms of marriage less to
provide rights than to impose burdens,
and the ones Carlson enumerates all
pertain to divorce: “alimony, child
custody, and the division of property.”
Significantly, these burdens were
not symmetrical; they all involved
removing something from the man. But
they were accepted because in return
the man derived one vital protection
from marriage: the right to have children
recognized as his. This too has become
a fiction.
Margaret
Mead once observed that reinforcing
the parent-child bond has always been
more necessary for fathers than for
mothers. Some modern conservatives
insist that marriage serves foremost
to control male promiscuity. If so,
it does so as a product of its larger
function: to protect the father-child
bond and with it the intact family.
This is evident today, as the weakening
of marriage produces fatherless, not
usually motherless, homes. This point
is overlooked by today’s traditionalists,
who argue that marriage undergirds
civilization, for it is the father’s
presence that signifies both the intact
family and, by the same measure, the
civil institution. Thomas Hobbes attributed
to married fatherhood a central role
in the shift from the state of nature
to civil society. In nature, Hobbes
argued, “the dominion is in the mother”:
“For in the condition of mere nature,
where there are no matrimonial laws,
it cannot be known who is the father,
unless it be declared by the mother.
And therefore the right of dominion
over the child dependeth on her will
and is consequently hers.”
Only
in civil society—where “matrimonial
laws” do operate—is custody over children
shared with the father. Today, the
different but interchangeable labels
used for similar family-promotion
schemes in the last two administrations
implicitly recognize that fatherhood
(Clinton) and marriage (Bush) are
inseparable.
Traditionally,
it has been marriage, not sperm, that
determines the father. This was the
purpose behind Lord Mansfield’s law
stipulating that a child born within
wedlock is presumed to be that of
the husband. It enabled a marriage
to survive the wife’s adultery. Here
too, no-fault divorce has inverted
the effect. By supporting what is
now known as paternity fraud, Lord
Mansfield’s law has been transformed
into an incentive to dissolve rather
than preserve families. By filing
for divorce, the adulterous wife,
perhaps in collusion with the biological
father, can now collect child support
from the cuckolded husband for the
children produced by the adultery.
Overwhelmingly,
therefore, when children are involved,
the spouse on whom government power
will be brought to bear and who will
experience the divorce regime’s growing
capacity to criminalize the involuntarily
divorced is the father. Some believe
this is logical, and it would be appropriate
if, as popularly believed, the father
is the one dissolving the family.
In fact, the divorcing parent today
is almost invariably the mother.
The
failure of policymakers to confront
this has further criminalized private
life through a panoply of repressive
measures against primarily (though
not exclusively) fathers. “The advocates
of ever-more-aggressive measures for
collecting child support,” writes
Christensen, “have moved us a dangerous
step closer to a police state.” Devised
as part of the welfare system to compel
payments by unmarried fathers, penal
measures pertaining to child support,
domestic violence, and child abuse
have now spread to the middle class
through divorce. Justified to protect
and provide for women and children
once the father is gone, they have
mushroomed into an elaborate machinery
that serves to remove fathers and
subsidize fatherless homes.
Contrary
to two decades of judicial and feminist
propaganda, no scientific data indicate
that fathers are, en masse, abandoning
their families, beating their wives,
and molesting their children. On the
contrary, the evidence unambiguously
establishes that a married household
is the least likely setting for these
problems.
The
family crisis widely accepted on the
Right as well as the Left is an optical
illusion. What is advertised as an
epidemic of dissolute fathers increasingly
reveals itself as a power grab by
a new class of political operatives
who created no-fault divorce and who
share an interest in displacing fathers
and politicizing children. What makes
it diabolically successful is a capacity
to silence opposition and co-opt critics
by claiming concern for children and
distributing largesse ostensibly for
their benefit. Thus camouflaged, the
champions of other people’s children
make an end-run around more visible
clashes over homosexuality, pornography,
abortion, and schooling. But the bottom
line remains: never before have governments
created a bureaucratic apparatus whose
primary purpose is to separate children
from their parents.
The
family crisis represents a microcosm
of the larger crisis of modern politics,
for it is driven by a class of political
professionals whose livelihoods depend
on politicizing everything, including
now the most intimate corners of our
lives. The government-occupied family
is only the beginning of the brave
new world we have created. 
______________________________________________________
Stephen
Baskerville is a professor at Howard
University.
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