I've probably been hanging around Hadley Arkes too long. Hadley has a way of coming up with wonderful little pieces of proposed legislation whose main point is less the legislation itself than the principle it establishes or absence of sound principle it exposes. For example, he has proposed that legislation prohibiting abortions in the third trimester (after "viability") be introduced in Congress, in order to force pro-choice representatives to make arguments of some kind as to why such legislation should not pass. They surely would oppose it, but what could they give as a reason for doing so? Such a law might not save many lives in the short run-there are relatively few third-trimester abortions ("only" about 17,000 a year)-but it would be valuable because it would reveal more clearly and publicly the true foundations of the pro-choice position: radical autonomy, even to the point of destroying early, developing human life.
A similar kind of proposal has occurred to me. It's not a proposal that is likely to have much of a practical impact. I'm not even sure that it is one we should want to press for. But I think it would be interesting to put forward, in order to reveal more clearly and publicly something that many of us know is true, but that orthodox liberals would deny. This proposal concerns not abortion, but marriage.
The proposal is this: let us amend state marriage laws so as to make it possible for a man and a woman to choose freely to enter into an indissoluble marriage. Note: possible, not mandatory.
The details of such a law would have to be worked out. Perhaps, to minimize certain objections, it would have to be restricted to people who are at least twenty-one. Presumably, some grounds for legal declaration of the nullity of the marriage ab initio (annulments) would have to be maintained, though in a form that did not become a gaping loophole. (Admittedly, this might not be a simple task.) Indissolubility is, of course, completely compatible, in principle, with legal separation for cases in which the well-being (physical, financial, and otherwise) of a spouse is threatened by continued living together. But these practical issues aside, it is intriguing to speculate about the debate that might emerge from such a proposal.
As the current legal order stands, all American marriages can be dissolved by divorce decrees. "No-fault" divorce legislation swept the country in the 1960s, and became law in all the states. It was based on the assumptions that (a) marriages involving irreconcilable differences ought not to be maintained compulsorily by the law, and (b) the harms of clogging up the courts with bitter divorce battles outweighed any benefits of requiring that divorce be based on some legally proven "fault" of one of the partners.
It is hard to know the extent to which the increased rate of divorce today is affected by the relative ease of legal divorce. That is, it is difficult to know whether no-fault divorce is a cause or merely a symptom. Of course, no one would contend that no-fault divorce is the cause of a high divorce rate; but it would certainly not be unreasonable to suppose that it is a significant contributing factor.
No-fault divorce legislation was, from one perspective, merely part of a larger cultural change that expanded personal autonomy, not merely in marriage laws, but in the area of sexuality generally (and more broadly as well). It is surely not the sole cause of declining family stability.
On the other hand, even if it is, to a considerable extent, an epiphenomenon of deeper cultural changes, once ensconced in the law, divorce becomes part of the "moral ecology" of our culture and shapes the attitudes and expectations of many citizens about marriage. The free terminability of marriage changes the definition of marriage, just as there is an essential difference between a contract terminable at will by either party and a contract terminable only after ten years. Such laws promote a certain image of marriage, with terminability as one of its features.
Of particular interest is the question of its impact on traditional communities within the nation that have principled commitments to different views of marriage. For example, Catholic parents can raise their children to understand divorce as a "legal fiction." They can tell their children that when they say that so-and-so is "divorced," they don't really mean that his or her marriage bond with the original spouse has been broken-that bond, after all, is unbreakable-but that our particular society (wrongly) regards it as having been broken.
But in the real world of raising children and of growing up in society, it is difficult to maintain this understanding. Children-somewhat understandably, I suppose-get annoyed if, every time they refer to a "divorced" person, they have to hear mom or dad trot out the homily: "Of course, they're not really divorced, because . . ." Nor can they themselves, when they are in normal conversation with their friends-many of whom are non-Catholics or "Americanized" Catholics who don't accept the Church's teaching on marriage-be expected to trot out the homily when there are references to divorce. Moreover, as they associate with more and more friends whose parents are divorced, whose "moms" or "dads" are not "really" their moms or dads, but their real mom's or dad's second spouse-and who may be very nice people, whom their friends regard as their genuine parents-it becomes harder to keep the distinction sharp. And so they end up absorbing from a society where there are frequent, casual references to and experiences of divorce, almost as if by osmosis, views antithetical to what Catholics believe to be the truth about marriage.
The intermediate position between the Catholic view and the secular liberal view is the "privatization" of our moral views: divorce-the fact that the marriage is ended, the bond broken-is subtly assumed to be a reality, but "we Catholics" don't do it. But, deprived of its foundation in "reality," such a view easily degenerates into the view that "no divorce" is a "rule" for Catholics. And once it becomes a "rule," it can easily be challenged as "moral absolutism," "uncompassionate," "rigid," and so on, and something subject to change. It is this process that probably explains why so many modern Catholics have come to accept divorce and remarriage.
I have spelled out this line of reasoning (less a matter of logic perhaps, than what might be called "socially conditioned" thinking) because of the likely liberal response to the proposal that American law permit indissoluble marriage. That response would go something like the following. "It is not true that American law is incompatible with indissoluble marriage. There is absolutely nothing to prevent two people who believe that marriage is indissoluble from getting married and staying married, fixed in their belief that divorce is a fiction. Our law simply declines to compel all people to enter indissoluble marriages, since many of us do not believe that marriages are indissoluble. The law is neutral, because it permits everyone to live consistently with his or her own beliefs on the subject."
There is a core of truth in this, of course. There is no reason, for example, why Catholics could not recognize that they live under two laws, a civil law and their own canon law, and treat the civil law on marriage, with its permission of divorce, as irrelevant to them.
My contention, however, is that the law is not neutral. In treating marriage as a contract revocable at the will of either party, the law adopts one of the competing views of marriage. It does not permit people to really bind themselves to a permanent and exclusive marriage, by reinforcing the personal commitment with the force of the law.
Yet some people might want to have that unbreakable, legally enforceable bond for themselves, on various grounds. It would provide very strong incentives for each person to make his or her own initial decision to marry carefully and reassure each person about the seriousness with which his or her prospective spouse makes that decision. It would provide similar incentives for each of them to exert the maximum effort to make the marriage work, and, again, reassure each one that his or her spouse has the same incentives. This could be viewed as one "strategy" for maximizing the likelihood of a successful marriage. Liberal divorce law not only rejects this strategy as a general one for all marriages-it rules it out even for those who would freely choose it.
One classic image of such a strategy is Ulysses and the Sirens. Ulysses knew the dangers of mariners following the beautiful voices of the Sirens and their ships being destroyed on the rocks, so he put wax in the ears of his men. Wanting to hear the voices himself, he left his own ears open, but, as a precaution, he had himself roped to the mast.
Similarly, knowing that the siren call of infidelity is one that human beings cannot systematically preclude themselves from ever hearing- though it can lead to disaster-some people might prefer to construct institutions that will prevent them from following those temptations when they occur. In short, they might choose not just to "commit" themselves to their spouses, but to "bind" themselves to their spouses. Why should they be precluded from adopting such a strategy?
The idea of permitting decisions involving lifelong commitments is one that liberals or "autonomists" have a great deal of difficulty-I won't say accepting, but rather-tolerating. Why? Perhaps it would not be unfair to make the following comparison. Welfare state liberals today are often critical of the free market, because those who suffer in it (e.g., the unemployed) are immediately in view, while its advantages (because they are the result of indirect effects, especially in the form of incentives) tend to be seen only in the long run. Similarly, social liberals have a great deal of difficulty accepting restrictions on divorce, because those who suffer from such restrictions are immediately and easily observable, while the benefits of such restrictions (because they flow from indirect effects on incentives) are not as easily identifiable. The common element underlying the two views is misplaced- because it is based on excessively short-term views-compassion.
"But the law is neutral in a broader sense," someone might argue. "Its duty is to preserve personal freedom or autonomy, and genuine autonomy requires that a person always have the ability to change his or her mind." Perhaps the liberal apologist would draw a parallel between indissoluble marriage and a voluntarily made contract to enter a state of slavery: just as American law will not recognize a contract to enter into slavery-since it would constitute a giving up of the very freedom the law is intended to protect-so it will not enforce a contract to establish an indissoluble marriage, since that would restrict the freedom of the party to change his or her mind. A legal order protecting true autonomy is inconsistent with laws permitting the giving up of autonomy, even voluntarily.
I was told a story recently by a person who had a conversation with one of the Uniform Law Commissioners influential in the rise and triumph of no-fault divorce laws. The possibility of formulating the law with an "opt-out" provision for those who might prefer not having the option of no-fault divorce was raised, and drew the immediate response, "That would be against public policy."
What this makes clear is that liberal society is not neutral on the autonomous life (as "autonomy" is conceived by contemporary liberals). Traditional communities-such as groups of Catholics-within the larger political community that deny the absolute value of the autonomous life are put at a distinct disadvantage, as things stand, by American law. They are not permitted to make legally enforceable contracts binding themselves to abide by what they take to be the moral law. From one perspective, one might say that they are "forced to be free."
Another possible line of opposition to a law that would permit indissoluble marriages is quite different: indissoluble marriages are sometimes wrong, not because they violate the autonomy of the spouses, but because they harm third parties, namely the children of marriages where the partners have come to dislike each other so much that they create a pervasive atmosphere of mutual hostility deleterious to the well-being of the children. According to this line of reasoning, the state has an obligation not to permit indissoluble marriage contracts because of the possible harm to some children, in whom the state has an interest independent of the marriage itself.
But this case must actually be pressed much further than might appear at first glance. Freely chosen indissoluble marriage contracts would not be incompatible with decrees of legal separation. The fact that the marriage bond is held to be unbreakable is not inconsistent with an allowance, where extreme circumstances permit, of legal separation, either to protect the well-being and safety of one of the spouses themselves, or of the children. What it would prohibit, for those who choose indissoluble marriage, is legal remarriage.
Therefore the case for protecting third parties would have to be based on the contention that in some cases children would positively benefit from having one of their parents marry a new spouse. But this is a less compelling argument because it moves from something that is "necessary"- removing the children from circumstances that are positively harmful to them-to something that is "beneficial"-that the children be put in circumstances that are "better." But the state cannot be given the power to determine and enforce what is merely "better" for children. After all, if the argument were that the children would be better off with remarriage, that would seem to imply a ground for the state to command remarriage-an argument no one is likely to make.
Moreover, it is not difficult to raise serious questions, on the basis of contemporary social science research, about whether in the aggregate- that is, across all of society-children are better off under a regime of easy divorce than under a regime of indissoluble marriage (with legal separation available in extreme circumstances). Studies like Wallerstein and Kelly's Surviving the Break-Up, based on a long-term study of the effects of divorce on children-at the very least (and in spite of the authors' own commitments to the maintenance of divorce laws)-make it impossible to say with any certainty that children are better off in a society where divorce is easily obtainable. It is certainly true that some children suffer greatly under the influence of some bad marriages. But it is no less true that some children suffer terribly in cases of divorce, even of "bad" marriages.
Nor is it possible to measure the suffering occasioned by the additional divorces that occur in a regime that permits divorce, when such marriages might have been saved and made good in a regime that did not permit divorce. Nor-given that children of divorce are distinctly more likely themselves to have marriages ending in divorce-can we measure the extra suffering occasioned for the children involved in those additional divorces.
At the very least, it is not possible for liberals to take a stand on these intensely contestable questions, use that stand to ground a prohibition of indissoluble marriages, and then legitimately claim to be establishing a "neutral" legal framework for society. A law that does not at least permit indissoluble marriages cannot maintain a pretense of neutrality.
It is not only liberals who might oppose a law that permits indissoluble marriages. Those who fully accept the indissolubility of marriage might also do so. Their argument might take the following form. "It is true that marriage is indissoluble and that it is sad that American law does not reflect that truth (although that law may be unavoidable, given that the social mores would not support a law that made all marriages indissoluble). Nonetheless, a legal permission for some indissoluble marriage contracts would make things worse, because it would systematize the dissolubility of marriage more completely. As things stand, all marriages are technically dissoluble, given the availability of no-fault divorce, but the law still treats marriage as a single entity and most ordinary people still enter into marriage with a sense that they are doing so 'until death do us part.' By forcing people to choose between a specifically dissoluble and a specifically indissoluble marriage contract, the law may actually heighten many couples' sense of the dissolubility of their marriages. On the whole, then, such a law would make the situation even worse."
This argument is not without considerable force. It turns, in great measure, on exactly what the sense of most Americans entering marriage today is. Do most Americans consider their own marriages as "indissoluble" (irrespective of what laws they might favor)? If so, the case for not forcing people formally to choose between dissoluble and indissoluble marriage contracts is stronger.
But I tend to think that we would be deceiving ourselves if we viewed the current situation in that way. It is, unfortunately, easy to mistake a hope that marriage will last forever with a belief that it necessarily will. There is no evidence in our current society that genuinely indissoluble marriage has widespread support. Under these circumstances- an assessment that reflects a deeper disillusionment with contemporary American mores-worrying about whether the institution of marriage will be weakened by permitting indissoluble marriages seems rather farfetched.
And yet, paradoxically, it is the very strength of the ideal of marriage "till death do us part" that may be one of the most important reasons why this proposal is unlikely to be adopted in American law today.
The practical effect of a law permitting indissoluble marriages would be to create a two-tier system of marriages in this country: those that are dissoluble and those that are indissoluble. And such a two-tier system would offend democratic egalitarian sensibilities.
Why, you ask? Don't democracies tend to place a high value on personal liberty, and wouldn't such a law give people more freedom to choose which kind of marriage they want?
The underlying problem for the liberal is that the lover does not seek freedom, but union with the beloved. The lover wants the beloved to give love freely, but the lover may also want to bind himself or herself to the other and to give and receive a permanent and exclusive love. And the signs by which the lover binds himself or herself to the beloved are of enormous importance, especially given the vulnerability of one who gives himself or herself completely to another.
In the real world, how would romantic relationships be affected by the existence of two different kinds of marriage contracts, one dissoluble and the other indissoluble? Let's face it: while many people would opt for the dissoluble contract, because of their uncertainties about the vagaries of married love, many people (most? I doubt it, but who knows?) would regard the indissoluble contract as the expression of a fuller, more complete, more unconditional love. The other kind would be-in a colloquial phrase some kids use-"cheap-lousy."
It is almost amusing to imagine the dilemma confronted by the young lover trying to decide which form of marriage to propose to his beloved- and especially the tactfulness and imagination with which he would have to present his arguments for proposing marriage with a "bail-out" provision. ("When you get to know me better, you may discover that I am utterly unworthy of you, and far be it from me to lock you into a marriage with someone who will make you unhappy." Presumably the more romantic ones would avoid: "Who knows whether we'll be happy? Let's not take too big a chance.")
The very existence of an indissoluble marriage contract would be, for many, a sign of contradiction: an accusation to those unwilling to make the unconditional commitment, a kind of implied charge of "second-class" love. I doubt that a modern democratic society would permit such a distinction. It would prefer to prohibit the sign of a more unqualified love, in order to prevent the implication that other loves were lesser ones.
As I suggested above, I'm not entirely sure whether this proposal is worth acting on. I am convinced it is worth thinking about, and getting other people to think about: the ensuing discussion should make it clear that liberal law is distinctly not neutral on this subject; it is distinctly engaged in propagating its own moral views.
At the root of the liberal view is a certain vision of human nature. That vision says that people are too changeable, and the consequences of their changing too drastic, to permit unconditional commitments to other people. Those who would seriously commit themselves to an indissoluble marriage-indissoluble in a binding and legally enforceable way, not just as a personal ideal or goal-are making a mistake. They must be protected from the consequences of their own improvidence. At bottom, then, contemporary American divorce law is a version of liberal paternalism.
This, however, is paradoxical, for liberalism generally presents itself as opposed to paternalism: "People must be left free to make their own choices, as long as the bad effects of their actions fall upon themselves and not others. If they suffer the consequences of bad choices, then they and others will learn by what they suffer. When the consequences are irreparable, that is unfortunate, but it is not a decisive objection to such a policy." Advocates of paternalism frequently contend that the failure of people to live in certain ways will lead to irreparable consequences, so adoption of that proviso (i.e., no paternalism, except where the consequences are irreparable) would simply gut the antipaternalistic principle. As long as the decisions are made freely, and do not harm others, liberals hold that there is no reason for the law to prohibit them.
If liberals are right about paternalism, then the unfortunate experiences of those who freely choose the option of indissoluble marriage will be a salutary warning to others. Unfortunately, much liberal hostility to "paternalism," in the form of legal regulation of morals (obscenity, homosexual acts, etc.), is not really opposition to paternalism per se, but to the substantive notions of morality involved. That explains, for example, why so many liberals are perfectly at ease with mandatory seatbelt laws. They may justify their position with arguments about higher medical costs and insurance rates (perfectly reasonable arguments, it seems to me), but I can't help thinking that the real force behind mandatory seatbelt laws is much more traditional: i.e., something along the lines of, "It's just so stupid for people to put themselves in danger by not wearing seatbelts!" The desirability of avoiding death and serious physical injury seems so obvious that it is exempted from the usual liberal suspicion of regulating lifestyles when it comes to questions of morality.
The fact that all marriages are subject to legal nullification in our legal system cannot be explained by hostility to paternalism-though, of course, opposition to traditional marriage laws substantially restricting divorce for all people could be understood on such grounds. Paradoxically, the only explanation for the refusal of the law to tolerate indissoluble marriages is the opposite: the paternalism of liberal law itself.
The ideal of autonomy, an autonomy so broad as to preclude fixed, permanent, lifelong commitments, is the foundation for our contemporary marriage laws. It is a substantive moral ideal. And this moral ideal is incompatible with and hostile to the substantive moral ideal of marital fidelity that is embraced by certain traditional communities that from one perspective are "within" the American community and from another perspective are not: most notably, by Catholicism. That is why it is fair to say that there is a "culture war" going on in our society today and why contemporary liberalism's claim to be simply "a procedural republic" is indefensible.