Bound by Choice

A modest step toward separation of marriage and state

As a stand-up comic in the '60s, Woody Allen told a joke about what happened after he and his wife decided to get a divorce. "The Bible says, 'Thou shalt not commit adultery,'" he noted, "but New York State says you have to."

Since then divorce has become much easier—too easy, in the eyes of many critics, who argue that the ability to unilaterally and arbitrarily sever what was once considered a lifelong bond has made the relationship barely distinguishable from cohabitation and contributed to unprecedented rates of family breakup. One intriguing response, in the news lately because of renewed attempts to promote the idea, is "covenant marriage," an option that makes breaking up harder to do.

Unlike the "no-fault" laws adopted in the '60s and '70s, covenant marriage does not replace the existing divorce rules for everyone—only for couples who choose it. Hence it expands individual freedom and points the way toward a separation of state and marriage under which the government's role would be limited to enforcing voluntary contracts.

In Arkansas, where Gov. Mike Huckabee and his wife of three decades, Janet, publicly upgraded their union on Valentine's Day, covenant marriage requires pre-wedding and pre-divorce counseling, restricts fault-based divorce to half a dozen grounds (including adultery, imprisonment, and physical or sexual abuse), and otherwise allows divorce only after two years of separation. Two other states, Arizona and Louisiana, offer covenant marriage options with similar restrictions (although Arizona's version allows quicker divorce when both spouses agree).

Some people can't understand why anyone would want to stay in an "unhappy marriage"—i.e., a marriage one of the spouses wants to leave. Maggie Gallagher, a leading critic of "no-fault" divorce, pretty accurately describes their position this way: "You want to hold onto someone who doesn't want you anymore? What kind of loser are you?"

This attitude discounts both the possibility of reconciliation—a possibility covenant marriage is designed to enhance—and the unfairness of abandoning a spouse who has sacrificed for years to build and preserve a relationship he or she expected to last, not to mention the suffering of children who bear no responsibility for their parents' breakup. Research on the consequences of divorce indicates it's wishful thinking to assume the rejected spouse and the children ultimately will be better off.

Just as important, the ease of divorce affects how people approach marriage: their ability to trust each other, their willingness to compromise, the effort they put into working things out when the going gets rough. The essence of marriage, after all, is a commitment that transcends fleeting impulses, a choice to be bound by obligations that may sometimes feel onerous; otherwise there would be no point to the arrangement.

University of Virginia sociologist Steven Nock reports that couples who choose covenant marriage are one-third less likely to get divorced within five years than couples who opt for the standard contract. Some of this difference could be due to greater initial commitment among people who are attracted to the more restrictive arrangement, who so far have been a much more select group than supporters of covenant marriage hoped or its opponents feared.

When Louisiana became the first state to offer the option in 1997, critics worried that couples' eagerness to demonstrate their love would make covenant marriage the default arrangement. But 98 percent or more of newlyweds in Louisiana, Arkansas, and Arizona have managed to resist the pressure, which is why advocates of covenant marriage are mounting publicity stunts such as the Huckabees' contract enhancement ceremony.

The real potential of this movement may lie in its implicit argument that the government should not dictate the terms of marriage by imposing a one-size-fits-all contract on all couples, that instead it should let them choose the arrangement that suits them best. In this connection, it's striking that President Bush, who supports a constitutional amendment to ban same-sex marriage, takes no position on covenant marriage, which he says is an issue for the states.

It's hard to believe gay couples represent more of a threat to marriage than "no-fault" laws that, as a Christian activist interviewed by The New York Times put it, make marriage "easier to get out of" than "a contract to buy a used car." Conservatives should recognize that a government powerful enough to preserve marriage as they think it ought to be also is powerful enough to destroy it.