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Article Excerpt
I. INTRODUCTION
Much has been written in recent years regarding marriage and its place in modern society. Articles have been published advocating the expansion of marriage to include same-sex couples, (1) the abolition of government-regulated marriage, (2) and condemning the "withering away" of marriage and all it represents. (3) Authors have proposed replacing the legal status of marriage with a new status bearing different nomenclature, such as "domestic limited partnership," and have suggested creating different rules, rights and obligations than those currently pertaining to the status of marriage. (4) Others have proposed the creation of a new status for same-sex couples, which roughly parallels the rules, rights and obligations currently applicable to married couples, and would exist alongside the current legal status of marriage. (5) The legislatures of several states have taken varying positions on these issues. While some states have created a separate "civil union" status, others have expanded the traditional definition of marriage or explored the idea of "covenant marriage." For example, the Vermont legislature created the status of "civil union" that confers the same benefits enjoyed by married couples on same-sex couples who choose it. (6) Additionally, the Massachusetts and California legislatures have been directed by the highest courts in those states to redefine marriage to include same-sex couples. (7) Conversely, many state legislatures have taken the opposite view, defining marriage restrictively as a union between one man and one woman. (8) In three states, the legislature created a separate form of marriage--termed "covenant marriage"--a purely elective status available only to different-sex couples and creating stringent requirements for both entry and exit. (9)
Against this backdrop, the marriage debate rages on; each side equally convinced of the merits of its arguments and making them vigorously with legal, ethical, moral and religious overtones. Apparently, it is not possible for states to reach a consensus regarding a universal definition of a legally recognized relationship that would replace the current status of marriage. At the same time, each side appears woefully unhappy with the status quo. One side desires an expansive definition of marriage whereas the other desires a more restrictive definition, like those currently governing most jurisdictions. Some in the more restrictive camp also desire mandatory requirements for entering and exiting the marriage relationship.
Some very compelling (and some not so compelling) arguments have been advanced on each side of the debate. It is painfully obvious that whether the status of marriage is modified or remains the same, a substantial number of people will be unhappy and feel that their personal morals, ethics and beliefs have been violently offended. If a consensus of any kind is to be reached, it must satisfy the most compelling arguments made by each side. How is that possible when the positions of the two camps are so polarized? The solution must provide for more than one legally recognized relationship that couples may enter, each offering the same rights and benefits but with different requirements.
This article proposes an approach that defines two legally recognized relationships. First, opposite-sex couples desiring a traditional marriage could choose the option that generally adopts portions of the covenant marriage law enacted thus far by three states. Second, all couples, whether same-sex or opposite-sex, could choose the option most similar to today's current marriage relationship.
Part II of this article discusses the general history of the marriage concept. Marriage has historically taken different forms and has had varying degrees of importance over time and with respect to different groups. Part III addresses some of the criticisms levied against the current state of marriage, and the responses to such criticisms. Part III.A discusses the view that marriage has become much too liberalized and inclusive therefore losing much of its original meaning and importance. This liberalization has been described as a "withering away" of marriage, much to the peril of society. As explained in Part III.B, one response to that view has been the enactment of covenant marriage laws. Part IV advocates an expansive view of marriage that would include same-sex couples and further explains some of the arguments advanced on both sides of that debate. Part IV also discusses the proposals offered to resolve that debate. Part V explains in more detail the need for a multi-faceted approach, and fleshes out the proposal described above.
II. THE HISTORY AND ORIGINS OF MARRIAGE
In telling the creation story, the Bible describes how woman was made from the rib of man and states that "[f]or this reason a man will leave his father and mother and be united to his wife, and they will become one flesh." (10) This statement implies that such unity, or marriage, shall be between one woman and one man. (11) Yet history reveals that marriage has taken many different forms and has assumed varying degrees of importance in different cultures. (12) There are many biblical examples of marriages not following the one man to one woman implication of Genesis. One famous example is King Solomon, who had 700 wives. (13)
Commentators differ regarding the historical importance of marriage in early Christianity. According to Professors Jennifer Drobac and Antony Page, "[b]efore the late eighteenth century, marriage typically only served one or more of three goals: (1) to consolidate wealth and resources, (2) to forge political alliances, and (3) to consummate peace treaties." (14) As for Christianity's role, the authors assert that "[m]arriage was not originally a Christian religious institution. During its first thousand years, the Catholic Church did not consider marriage a sacrament and weddings were not celebrated in churches." (15) Professor Daniel Crane provides substantial historical support for the proposition that the Catholic Church's modern view of marriage as a Christian sacrament--like baptism and the Eucharist--began to emerge early in church history and was theologically formalized at least by the Middle Ages. (16) Professor Crane also discusses various early, prominent, Protestant authorities on marriage who state "it is possible to locate a distinctive Protestant tradition that is both ambivalent toward the sacramental understanding of marriage yet insistent that marriage remains a spiritual institution." (17)
Professors Drobac and Page point out that American law, consistent with the First Amendment to the U.S. Constitution, has never recognized marriage as a sacrament or other religious construct. The law recognizes marriage only as a civil contract. (18) Although marriage remains an extraordinarily important religious concept, religious leaders who perform marriages are authorized to do so by local law and are charged with verifying the satisfaction of civil marriage license requirements. (19) In that regard, governmental regulation of marriage is entirely secular. Nevertheless, the concept of marriage adopted and approved for regulation is "based on religious tradition and the English common law:... lifelong, monogamous, Christian marriage." (20)
In its early form adopted from the English common law, marriage in America "was a strongly hierarchical relationship. Under the system of coverture, a married woman's legal and economic identity merged into her husband's." (21) In other words, the husband was in total, legal control of the marital relationship and any property produced during the marriage. As the Texas Supreme Court succinctly stated, "[a]t common law, the husband and wife were one, and the husband was that one." (22) This model remained in place, virtually untouched for about two centuries; indeed, it persevered despite "[w]omen receiv[ing] the right to vote in 1920 and gain[ing] greater citizenship and nationality rights in the decades that followed." (23)
Sweeping changes began to occur in the latter half of the twentieth century. In her book, Public Vows: A History of Marriage and the Nation, Nancy Cott identified the decade of the Second World War as an important turning point regarding the traditional model of marriage. (24) "During the 1940's, the Supreme Court abandoned its hostility toward migratory divorce, and the American Bar Association recommended moving to a no-fault principle in divorce." (25) As a result, fault was eliminated as a prerequisite for divorce. (26) Eventually the concept of the husband being in total control of the marital relationship and the marital property began to give way to a model of equal rights for both spouses. For example, Texas, a community property state, amended its constitution in 1972 to ensure equal rights between the sexes (27) and subsequently enacted laws equalizing the marital property rights of both spouses. (28) In the common law property states, the concept of coverture gave way to a system that essentially gave the spouses equitable rights of distribution upon dissolution of the marriage. (29)
III. WHAT HAS GONE WRONG WITH MARRIAGE? DIFFERENT PERSPECTIVES
A. Is Marriage "Withering Away"?
There is no question that the elimination of fault as a prerequisite for divorce has fundamentally changed the concept of marriage. Rather, the difference of opinion lies in whether marriage has changed for better or worse. As states began enacting no-fault divorce laws, the prevalence of divorce increased dramatically. Professor Allen Parkman cites to statistics reflecting that the annual national divorce rate was approximately ten per 1,000 women fifteen years and older for most of the 1950's and into the 1960's, but rose steadily after 1964 until 1979, when it peaked at 22.8. (30) After 1979, the divorce rate plateaued and in 1996, the last year for which we have reliable national data, the divorce rate was 19.5. (31) It has recently been estimated that nearly half of all marriages in America will end in divorce. (32)
Professor Parkman asserts that significant keys "to a successful marriage are sacrifices on behalf of the relationship, the expectation of reciprocity by the other family members, and a commitment by both spouses to their relationship." (33) He argues that no-fault divorce laws "create perverse incentives that discourage people from taking the steps necessary to make their marriages a success" (34) by inadequately compensating spouses for sacrifices made during marriage. Instead, spouses are encouraged to make decisions during marriage that benefit themselves at the expense of the family. (35) Professors Eric Rasmusen and Jeffrey Stake elaborate on this notion:
[T]he legal reforms radically changed the incentives married persons confronted. With no assurance that a marriage would continue and no security for either party in the judicially determined terms of divorce, the parties to a marriage remained nearly as financially insecure after marriage as they had been when single. Spreading of financial losses within the marital unit could no longer be relied upon when one spouse had the option to bail out of a household in difficulty. Devoting time and energy to producing assets useful to the marriage became riskier. A career became a safer bet for either party. People across the country responded to those new incentives, spending more time at the office and less at home. (36)
Professors Drobac and Page list four principle goals that married couples hope to achieve: to "(1) demonstrate love and commitment, both to each other and in the eyes of the community; (2) secure the parentage and welfare of their children; (3) create an efficient and unified domestic economic enterprise; and (4) obtain legal rights and benefits based on their marital status." (37) They assert that the free availability of unilateral no-fault divorce thwarts all four of these goals: (1) spouses are motivated to protect themselves financially by spending more time at work at the price of demonstrating less love and commitment to each other and to their marriage; (2) children suffer as a result of divorce due to adverse financial consequences, and experience more behavioral, emotional, health and academic problems than do children whose parents have not divorced; (3) an efficient and unified domestic economic enterprise is difficult to create when spouses cannot be confident that the marriage will survive no matter how much time and energy they devote to it; and (4) the legal rights and benefits of marriage can obviously not be obtained if the marriage ends in divorce. (38)
Professor Katherine Shaw Spaht argues that no-fault divorce is only one of many avenues in which the law has retreated from the regulation of marriage. This retreat has resulted in allowing the spouses not only to decide when to divorce but also "to enter the relationship of marriage without the information that used to be required, to define the content of their marriage and to determine its day-to-day regulation." (39) Professor Spaht further asserts that the practical result of the law's retreat from marriage regulation is that "people in Western countries have concluded that marriage is a private relationship which the law has no right to regulate and whose consequences affect only the parties to the marriage, not the general public, not even their own children." (40) Accordingly, "abandonment by law of the regulation of marriage played a significant role in changing society's understanding of marriage and its public character." (41) She concludes that
[w]hat our law ... teaches about marriage needs revision desperately--a revision that reinvigorates, strengthens, and protects the most fundamental of human institutions. The need for reinvigoration in law of the traditional understanding of marriage is pressing; it may be the only way Americans can resist other ideas inimical to and destructive of the institution of marriage. (42)
Other commentators have adopted a contrary position, heralding the establishment of no-fault divorce as a much needed progressive reformation of family law. For example, Professor Cynthia VanSickle observes that prior to the advent of no-fault divorce unhappy couples desiring a divorce were often forced to fabricate fault. (43) This often resulted in collusion between the parties wherein one spouse agreed to take full responsibility for the breakdown of the marriage to facilitate obtaining a divorce. (44) Professor VanSickle asserts that
[t]he change from fault to no-fault forced women to become better educated, more marketable, and consequently, more financially independent. To revert to a traditional, fault-based divorce system would encourage women to resume traditional gender roles, which emphasize the financial dependence of women on their spouses. Further, it also stands to reason that any financial hardship or dependence incurred by a woman in marriage and divorce would also be felt by the children of the marriage. (45)
Professor VanSickle concludes that "eliminating the no-fault provision from divorce actions is indeed a throwback to the pre-Civil Rights movement that serves to stratify gender roles and return them to the status quo of the pre-World War II United States." (46)
As the national divorce rate rose due to either the factors described above or for other reasons altogether, men and women were increasingly deciding to delay or reject marriage. (47) From 1950 to 2002, the median age of first marriages rose significantly, from 22.8 years for men and 20.3 years for women, to 26.9 for men and 25.3 for women. (48) A number of couples delaying marriage choose to cohabitate. According to the 2000 Census, "the number of unmarried couples living together increased by more than 70% between 1990 and 2000." (49) Professor Lynn Wardle reported at the time of his article that about 5% of all American households are comprised of nonmarital cohabitants, up from 3% a decade previously, and that "[a]pproximately half of all persons who marry have cohabited prior to marriage." (50) In addition, the success rate of cohabitating unmarried couples is much worse than that of marriages; approximately 90% of cohabitating unmarried couples end their relationship within the first five years. (51)
Collectively, the higher median age of first marriages for both men and women and the elevated divorce rate for those who do marry contributes significantly to the increasing percentage of unmarried heads of household. In 2004, almost 50% of heads of households were not married, up from almost 45% in 1990. (52) The percentage is higher yet in African American families; in 2000, it was estimated that only 48% of such families were headed by married couples. (53) Those factors also contribute significantly to the increasing number of children born to unmarried mothers. Professors Drobac and Page observe that, "[i]n 2002, a record 34% of births were by unwed women. More than twice as many unmarried African American women gave birth than married African American women did. The percentage of births to unmarried mothers for all races has almost doubled since 1980, when the rate was 18.4%." (54) Indeed, Professor Spaht also argues that "[n]o longer does the general public intuit that the married couple is the instrumentality charged with civilization's most burdensome, time-consuming but indispensable task, the acculturation of children." (55)
Professor Lynn Wardle devoted an entire article to the "withering away" of marriage. He described the official state effort in Russia during the two decades following the Bolshevik Revolution in 1917, which radically transformed and de-privileged the institution of marriage, and compared it to developments in contemporary American law. (56) The Russian attempt to promote the "withering away" of marriage was based on socialist ideology holding the state economically responsible for all its members and thus eliminating the need for marriage or family. (57) Professor Wardle provided the following summary of the Bolshevik experiment:
Within two months of the October 1917 Revolution, the government drastically liberalized divorce, allowing divorce without grounds, either by mutual consent or upon unilateral request. The same decree mandated civil registration of marriage and abolished legal recognition of future religious marriages. In 1918 those reforms were codified in a new Family Law Code that mingled some progressive provisions (such as joint property ownership and division) with other more radical provisions. The 1918 Code also legally abolished illegitimacy and adoption. In 1920, another national decree legalized state-funded abortion-on-demand. Finally, in 1926, a new Family Law Code was adopted that further liberalized divorce by entirely eliminating judicial review for mutual divorces, and allowing unilateral divorce through simple process--essentially postcard divorce. And since form was deemed irrelevant, if not a capitalist tool, and informal liaisons were considered as legitimate as marriage, the 1926 Code also extended full marital status and benefits to de facto couples. (58)
The Bolshevik experiment, forcing the "withering" of marriage and family, failed miserably. (59) Professor Wardle quoted an authority on Soviet social history, as follows:
"Soviet social reconstruction was paid for in the coin of individual suffering and broken families." For some subgroups of Russian society, especially some "peasants, family life often simply ceased to exist." After the Revolution, "moral decline and psychological excesses developed which 'further deepened the disorganization of the family ... and [created] economic hardships,' and in marital family relations" reduced the family to a condition lower than had "existed in Tsarist Russia." (60)
Because divorce became so easy to accomplish, the divorce rate rose rapidly. In most cases, women continued to be responsible for supporting the children, yet received little, if any child support or alimony. (61) Men began changing wives regularly, with some men marrying more than twenty women. (62) Abandonment, coerced divorce, blackmail and extortion became more prevalent. (63) Abortions became more commonplace, and the number of abandoned street children increased significantly. (64) "Children were the most tragic and numerous victims of the new family order." (65)
In an insightful comparison of the Bolshevik experiment with developments in American family law and society, Professor Wardle concludes that "[t]he same social practices ... embraced by Russian revolutionary society [in] 1917 seem to have been accepted and normalized in American society at the turn of the millennium," (66) and "[t]he same legal policy elements that combined to create the radical Bolshevik family law reforms seem to have emerged in the family policies of the American nation and/or the family law regulations of the American states." (67) The similarities between the Bolshevik experiment and American family law reform are unmistakable: divorce in America, as in the Bolshevik regime, has become extremely liberalized by the adoption of unilateral no-fault divorce laws; (68) bearing children outside of marriage has become commonly accepted and is no longer subject to legal or social stigma; (69) and the United States Supreme Court has legalized abortion.. (70)
Professor Wardle asserts that "[i]n some ways, American family policymakers have gone far beyond the Russian Bolsheviks with regard to elevating extra-marital sexual relations and giving marital status to nonmarital cohabitants." (71) In Lawrence v. Texas, (72) the Supreme Court recognized "the right of adults to enter personal sexual relationships as part of an unwritten fundamental 'right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.'" (73) In 2000, the American Law Institute recommended family law reforms that provided for the recognition of nonmarital domestic partnerships for all couples, whether same-sex or different-sex, and extended the same economic benefits accorded to married couples when they divorce. (74) Professor Wardle argues that these reforms "manifest that the mainstream of elite leaders of the bench and bar consider nonmarital relationships to be functionally equivalent to marriage in all significant respects relevant to any public policy in family law." (75) In addition, legislation has been adopted in several states legalizing in various ways relationships of same-sex couples, and extending marriage or marriage-like status to them. (76) Professor Wardle asserts that, as a result, "[t]here is a strong, growing legal and social trend in the United States to extend marital status and benefits to nonmarital relations that is similar to if not more extreme than the policies adopted by the Russian Bolsheviks in the decade after the 1917 Revolution." (77)
B. A Response: Covenant Marriage
To combat the perceived deterioration of the traditional concept of marriage as a union of one man and one woman intended to be indissoluble until death, some state legislatures considered establishing an alternate form of marriage that couples could choose rather than the default form already in existence. Legislation was unsuccessfully introduced in several states to enact "covenant marriage" laws. (78) These laws embraced the concept of so-called "supervows"--legally cognizable premarital contracts in which couples make marital commitments beyond those required by law. (79) Adoption of a covenant marriage law established the novel concept of a two-tiered marriage system in the adopting state.
In Louisiana, state representative Tony Perkins was interested in legislation that would strengthen families and joined forces with Professor Katherine Shaw Spaht, of Louisiana State University, to draft a covenant marriage law to be introduced in the Louisiana legislature. (80) The law's stated purpose was to act as "an antidote to the high rates of divorce and as a proactive measure to bolster the institution of marriage." (81) The law was eventually enacted and became fully effective in 1997. (82) Subsequently, Arizona in 1998 and Arkansas in 2001 enacted covenant marriage laws that are substantially similar to Louisiana's. (83) All require that a couple desiring to marry make a choice between the new covenant marriage statute and the standard form of marriage governed by statutes in existence when the new covenant marriage law was enacted.
1. What is Covenant Marriage?
The covenant marriage statutes differ from the standard marriage statutes in several key ways. First, the covenant marriage statutes contain much more stringent entrance requirements. In Louisiana, a couple desiring to enter a covenant marriage must execute a declaration of intent to contract a covenant marriage. The declaration states the couple's commitment to: (1) live together as husband and...
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