Civil Liberties

Reasonable Doubts: Free To Commit

"Covenant marriage" could strengthen families. So why are traditionalists lukewarm?


"New Louisiana Law Makes It Harder to Divorce," misreported NBC News on July 3. "New Louisiana Law Makes It Easier to Commit to Marriage Vows" would have been more like it. Either way, you'd think this summer's news from the Bayou State would have had traditionalist conservatives dancing in the streets, as far as is consistent with the decorum we expect from them. After years of griping about this country's disastrous rates of family breakup, there now springs up the boldest challenge yet to the "no-fault" divorce laws that are widely blamed for those rates. Sixties liberationist notions, finally busted flat in Baton Rouge: For a "pro-family" conservative, what's not to rejoice in?

But the politics of "covenant marriage" turn out to be rather more complicated, and symptomatic of the trouble in getting the right–will it soon be time to start calling it the former right?–to agree on much of anything these days. For the fact is that some influential leaders in the "pro-family" camp have been privately quite cool to the covenant marriage idea; by the time this column sees print, they may have publicly started throwing cold water on it. If the innovation is to catch on in other states, it may need the backing of others–maybe libertarians.

For those who came in late, the law signed by Gov. Mike Foster in mid-July (with an effective date of August 15) allows Louisiana couples to opt into an alternative marriage contract that's more genuinely binding than the default variety. Under modern "no-fault" divorce rules as they prevail in all 50 states, either side can bail out of a marriage at short notice, no matter the blamelessness of the other partner. Under covenant marriage, a Louisianan who wants out of wedded bonds will have to cool his or her heels through two years of separation–as opposed to 180 days under the state's no-fault law–or show a judge "definite cause." Definite cause will include adultery, a felony conviction leading to imprisonment, desertion for a year, or abuse of spouse or child. In addition, a covenant couple will have to submit to counseling both before a divorce and before the marriage itself.

Divorce reform has been quietly moving up the political agenda for years, a reaction to today's era of unilateral no-fault divorce. Although the no-fault revolution that began in the 1960s was advertised in some quarters as liberating, it would be a mistake to assume a priori that libertarians should find it an improvement over what came before. After all, the modern revolution simply replaced one prescribed-and-invariant marriage contract–one that made it relatively hard to ditch an uncooperative spouse absent proof of serious fault–with a different prescribed-and-invariant contract–one that made it hard to offer or obtain a binding commitment to stick it out in a marriage through better or worse. Some couples entering matrimony undoubtedly prefer the looser tie, but many others definitely do not, and our current law deprives them of the freedom to strike bargains they'd want to enter in pursuit of genuine security.

The difference between the two contracts is important in helping determine how married persons behave not only in extremity, when divorce has begun to seem thinkable, but also in happier times. A successful marriage requires vast personal investments: of income and professional opportunities forgone, often disproportionately by the wife; of many personal habits overcome and amusements set aside in the joint interest; of the stupendous resources and sheer effort required in rearing children and making a home in general.

"What happens to marriage when we declare that these investments will not be protected?" asks David Wagner, a writer with Insight and former director of legal policy at the Family Research Council. "The same thing that would happen to business if we were to declare that, henceforth, business contracts will not be enforced." Prevent builders and property owners from enforcing construction contracts against each other, and tumbleweeds will eventually roll down the streets, a fate some see ahead for the "little civilizations" of family life as well.

Defenders of no-fault can offer some plausible comebacks. The new rules do permit some marriages-made-in-hell to dissolve without brutal, protracted disputes over blame (though couples inclined to fight can usually find plenty to spar over on property, custody, and visitation issues). To some extent, too, a rising divorce rate surely reflects an ever-wealthier society's ability to afford the high cost of separate establishments for unhappy couples whom economic necessity once forced to stay under one roof. And in refusing to recognize even genuine mutual consent as grounds for divorce, the old law provided an incentive for the artificial manufacture of "fault," which led to connivance at perjury.

There's also the matter of the legal system's competence at enforcing a complex obligation many of whose dimensions can be subjective, hard to document, or both. Columnist Maggie Gallagher, whose The Abolition of Marriage (1996) has emerged as a leading manifesto of the movement to roll back unilateral divorce, agrees that many who in principle might support tougher divorce law lack confidence in "the government, frankly, to determine who's at fault. People don't trust the legal system to determine who committed a murder, let alone whose conduct destroyed a marriage."

Until lately, the one assumption that seemed safe was that the balance between these evils would be struck by the political class: legislators, judges, and the kinds of experts and activists who run campaigns in the press or get themselves appointed to blue-ribbon commissions. But now Louisiana has come up with a much more radical idea: Ask couples themselves what they think.

No casual poll of local voters could reveal as much about true preferences as will the decisions of couples whose own future happiness is on the line. Not surprisingly, opponents of easy divorce are predicting that Louisianans will vote with their rings, and in droves, for stronger commitment. The "genius" of the covenant marriage option, says Gallagher, is that it will refute the notion that the no-fault marriage is "the kind of marriage that most people want."

Many on the other side, interestingly, appear to agree. They write as if the new format will be too popular–and as if that were a reproach. Columnist James Gill of the New Orleans Times-Picayune complains that "many couples will feel compelled to take the covenant route," given how insulting it could seem to eye the exits before so much as crossing the threshold, and given that some religious denominations have announced plans to encourage or require the stronger contract for members in good standing. Compelled to choose one way, because the reasons to do so are too strong–makes unfreedom almost seem like an improvement, doesn't it?

Probably there are some genuine reasons not to get too thrilled about a menu-driven law of matrimony. "Some things work best when not plumbed quite so deeply," warns Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit in an interview. Kozinski adds that it may be felt as intrusive for the state to put couples "on the spot" about the extent of their commitment. Louisiana's covenant option itself is fairly mushy compared with the strictness of older divorce law: It will allow, for example, claims of "emotional abuse" to be cited as cause. By contrast, until 1971 Idaho required that an applicant for divorce prove such things as extreme cruelty, chronic drunkenness, desertion, permanent insanity, or a felony conviction. Until the 1940s South Carolina had no general divorce law on its books at all.

In addition, the whole effort may prove beside the point if covenanters who change their minds can simply hop the border and file for divorce in another state whose laws do not recognize a covenant option; under current practice, most states would probably apply their own no-fault laws, even at the cost of ignoring the couple's original intent. In the era of the Clare Booth Luce play The Women, evading the divorce law of one's own state might require an extended sojourn in remote and barely populated Nevada; but for residents of Shreveport, Lake Charles, and New Orleans, escape from covenantal bonds may be only an hour or two away, a plausible impulse move and one that might even be within commuting distance of their current jobs.

What was curious about this summer's debate was the extent to which the conservative press kept silent, even as mainstream outlets like Time and The New York Times were giving big play to the Louisiana developments. But then leading publications on the right tend nowadays to defer on these issues to Washington's "pro-family" lobby, most of whose leaders in turn were keeping noticeably mum on the issue.

Not that they could have missed it: Constituents around the country were buzzing about how they could help bring the Louisiana idea to their own states. It would seem that some of these constituents who called Washington have been met with broad hints to calm down: We're not sure this is an idea we're backing. Gallagher, herself "very enthusiastic" about covenant marriage, confirms that many pro-family colleagues have leaned negative on the idea in "conversations behind the scenes."

What's their objection? Some have privately said that any step that would explicitly "redefine marriage"–even in a traditionalist direction–is dangerous, because it opens the door to the idea of further redefining it by an act of will. And especially sinister, it seems, is this business of redefining marriage by providing the parties a choice, thus encouraging them to think their obligations might be shapeable in part by mutual will rather than by prescriptive authority alone. Once you let in the notion of choice, it's being warned, you start "privatizing marriage," giving the other side a basis to argue for a dozen other choice-based innovations in family law, from "trial marriage" to same-sex unions
–not to mention divorce by genuine mutual consent, anathema to trad hard-liners.

No doubt about it: When it comes to strengthening the family, no one talks a better game than our trad friends. In the meantime, any number of actual couples around the country who look to them for guidance may have to go elsewhere for help in obtaining Louisiana-style steps to help secure their own futures against temptation. They might be better off turning to supposed atomistic individualists like us, who haven't forgotten that the principle of free contract, powerful though it may be as a solvent, works even better as an adhesive.