James Taranto at the
Wall Street Journal wonders why opponents of the recent legalization of gay marriage in New York aren't also up in arms about a law passed last August instituting "no-fault divorce" in the state. After all, isn't it all about defending traditional marriage?
Last August, to far less public attention, lawmakers in Albany enacted legislation making New York the final state to institute no-fault divorce, thereby abolishing even the pretense that marriage is a lifetime commitment under the law. Under this regime, marriage is a lifetime commitment only until one spouse decides otherwise.
As a Bloomberg report noted at the time, the Legislature took this step for a good practical reason, "to reduce long, cutthroat court battles over who's to blame when marriages fail":
"There is a human cost and a financial cost" to a system demanding fault-finding, Robert Ross, supervising judge of the matrimonial division in Nassau County, New York, on Long Island, said before the bill became law. "It's hard to know what impact a new law will have, but we do know that a grounds trial, and the expense and delay associated with it, is not a good thing."
New York's previous fault-based divorce system was out of step not only with the laws of the other 49 states but also with a culture in which divorce is commonplace and marriage for life is no longer the norm. This state of affairs has multiple and mutually reinforcing causes: female careerism, which reduces the value of the traditional male provider; the social acceptability of nonmarital sex (still quaintly termed "premarital"), made possible by the easy availability of contraception and abortion; and welfare and child-support laws that create incentives for childbearing outside marriage.
None of these developments have anything to do with homosexuality. Deroy Murdock made a good point some years back when he observed, in a column posted at NRO, that "social conservatives who blow their stacks over homosexual matrimony's supposed threat to traditional marriage tomorrow should focus on the far greater damage that heterosexuals are wreaking on that venerable institution today."
Edward Morrissey at
The Week makes a similar point:
Part of the decline of families that began in the 1960s can be blamed on cultural changes and rebellion against older social paradigms, and some on government interventions, such as welfare regulations that undermined marriage specifically. It also resulted from liberalized divorce laws, especially so-called no-fault divorce. While divorce was never illegal, until the latter half of the twentieth century, government treated marriage as an actual contract whose abrogation carried substantial civil liabilities. To obtain a divorce, a spouse needed actual grounds for termination of the marital contract, and courts, at least theoretically, issued property and custody settlements on the basis of fault. At the least, this approach made divorce costly and potentially ruinous, which may have left unhappy marriages in effect, but also solidified the stability that social conservatives seek.
After no-fault divorce and its equivalents prevailed, there were no substantial penalties for abrogating the marital contract. The original intent of no-fault divorce was to make the process easier and get courts less involved, and on those counts, it succeeded beyond anyone’s imagination. One spouse can end a marriage and end up with half the property and custody merely by walking out on the other. It’s the only kind of legal partnership in which one party can opt out with little consequence just because he might find another potential partner a little more attractive, or has unilaterally tired of the other partner.
American marriage didn’t get devalued because New York’s legislature followed that of New Hampshire and Vermont in legalizing same-gender marriage. It got devalued when we began treating marriages as less important and less binding than business partnerships.
Morrissey's solution is to get the state out of marriage altogether:
Instead of demanding that states define and enforce marriage in a narrow sense, conservatives should demand that government stay out of defining and performing marriages at all. Couples that want to form partnerships should create a legal relationship based on existing contract law that is neutral to issues of gender and sexual preference. When one partner wants to end a partnership, then the terms of the contract should be enforced by courts. That will not only get rid of government as a spiritual arbiter in marriage, a role for which it has repeatedly proven unsuitable, it would encourage couples wishing to marry to discuss and agree in great detail the terms of their relationship up front. That kind of preparation — and the knowledge that a court will enforce a partnership agreement — will produce better and longer-lasting partnerships, in part by discouraging impulsive decisions to leap into marriage in the first place.
Essentially, we would replace government-defined marriage with civil unions, or domestic partnerships. What would happen to marriage? Those who want to enter into a marriage relationship would have to go to the places better equipped to deal with sanctification: churches, synagogues, mosques, and temples. Will that mean that some churches have different definitions of marriage? Possibly. Some churches may decide to marry same-gender couples, others may not.
However, when government gets out of the marriage business, it won’t be anyone else’s business, and it will end government definitions that end up being seen as endorsements of certain lifestyles or denunciations of others. At the least, it would save the people who fought to get government to define marriage from the regret of watching how it gets defined as tradition wanes.
I think it is hypocritical for people who oppose gay marriage on the grounds that it amounts to a "war on the family" to remain silent about no-fault divorce and extending the legal rights of marriage to common-law partners, both of which have had far more impact on families than gay marriage ever will. Morrissey's suggestion makes sense to me: let churches define what the religious sacrament of marriage means, but extend the secular legal and contractual benefits of partnership to gays and straights alike.