WHY NO-FAULT DIVORCE IS OUR MOST DANGEROUS SOCIAL
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please make absolutely sure that you provide full credit to Crisis
The article below is on the cover of the March
issue of Crisis magazine. It is not yet on their web site (www.crisismagazine.com),
but apparently it will be soon. In the meantime, Crisis is available on
larger newsstands such as the major bookstores, so please buy a copy. Thanks
to especially to Ed Truncellito, to Judy Parejko for supplying some
material, to Mike McCormick and my colleagues at ACFC, and to others who
Crisis has a lively letters section and wants letters:
The March issue of Whistleblower magazine, published by WorldNetDaily (www.worldnetdaily.com),
will also be devoted entirely to divorce and should be out any day now:
It will contain my article, "Divorce As Revolution."
This is the second time Crisis has published a strong article on divorce
and connected subjects. The first was in November 2002:
http://www.crisismagazine.com/november2002/feature2.htm. This is in
addition to the exchange of letter I had with Wade Horn in November 2003:
http://www.crisismagazine.com/november2003/letters.htm. This was in
response to Horn's own article on marriage in June 2003:
http://www.crisismagazine.com/june2003/horn.htm. The Catholics (along
with libertarians) have been the most receptive to our issues. It is time
for the others to wake up.
With two major magazines devoted to this issue next month, this presents
an opportunity to take the initiative.
Thanks to those who responded to the ACFC newspapers advertisements. We
will soon be circulating more information about that campaign.
Stephen Baskerville, PhD
President, American Coalition for Fathers & Children
1718 M Street, NW
Washington, DC 20036
Department of Political Science
Washington, DC 20059
For more than 40 articles on families and fathers, see:
Crisis, vol. 23, no. 3 (March 2005),
THE NO-BLAME GAME:
WHY NO-FAULT DIVORCE IS OUR MOST DANGEROUS SOCIAL
By Stephen Baskerville
The nation is in revolt over marriage. Some 17 states have now passed
amendments to protect the definition of marriage, and more will follow. The
issue is plausibly credited with creating President Bush's margin of victory
in the 2004 election and that of some congressional candidates. Same-sex
marriage has also shaken the decades-long loyalty of African-Americans to
the Democratic Party. Only a short time ago, few would have predicted such a
public uprising in defense of marriage and the family.
And this may be only the beginning. Bill Cosby's celebrated remarks last
year on family morality -- and the largely positive response -- has placed a
once-taboo subject at the top of the African American agenda. And another
ballot result has not received the attention it deserves: In liberal
Massachusetts, a whopping 85 percent of voters defied the strident
opposition of feminists and lawyers to approve a non-binding referendum
giving fathers equality in custody decisions.
All this suggests that not only gay marriage but larger questions of
family integrity and parenthood are set to convulse our politics. Those who
cast their ballots last November on the basis of "moral values" may have had
more in mind than just same-sex marriage, which is neither the only threat
to marriage nor even the most serious. To truly reverse the decline of the
family, the momentum must be carried forward to confront the others. And
eventually we must grasp a painful nettle: The most direct threat to the
family is divorce on demand. Sooner or later, if civilization is to endure,
it must be brought under control.
The most forthright marriage advocates recognize that, as Michael McManus
of Marriage Savers writes, "Divorce is a far more grievous blow to marriage
than today's challenge by gays." Predictably, this fact has been seized upon
by advocates of same-sex marriage. "The weakening of marriage has been
heterosexuals' doing, not gays', for it is their infidelity, divorce rates,
and single-parent families that have wrought social damage," opines the
This distinction ignores the fact that the two problems are closely
connected. Gay marriage would probably not be an issue in the first place if
marriage had not already been weakened by divorce. "Commentators miss the
point when they oppose homosexual marriage on the grounds that it would
undermine traditional understandings of marriage," writes Bryce Christensen
of Southern Utah University. "It is only because traditional understandings
of marriage have already been severely undermined that homosexuals are now
laying claim to it."
Likewise, though gay activists cite the very desire to marry as evidence
that their lifestyle is not inherently promiscuous, Andrew Sullivan
acknowledges that that desire arises only because of the promiscuity
permitted in modern marriage. "The world of no-strings heterosexual hookups
and 50 percent divorce rates preceded gay marriage," he points out in the
New Republic. "All homosexuals are saying is that, under the current
definition, there's no reason to exclude us. If you want to return straight
marriage to the 1950s, go ahead. But until you do, the exclusion of gays is
a denial of basic civil equality" (emphasis added). Gays to do not want
marriage in the traditional mold, only the watered-down version that exists
Blaming the Victim
While lamenting the high divorce rate is conventional piety among family
advocates, most have refused to challenge the divorce laws. The standard
rationalization is that to control divorce we must first change the culture.
But no one suggests that changing the culture is a prerequisite for
preventing, say, abortion. While cultural forces certainly contribute, the
divorce epidemic has proceeded directly from a legal system which permits
and even encourages it.
No-fault divorce laws were introduced in the United States and other
industrialized countries during the 1970s and are being expanded into other
regions of the world today. "No-fault" is a misnomer (taken from car
insurance), for the new laws did not stop at removing the requirement that
grounds be cited for a divorce. But they did create unilateral and
involuntary divorce, so that one spouse may end a marriage without any
agreement or fault by the other. Moreover, the spouse who divorces or
otherwise abrogates the marriage contract incurs no liability for the costs
or consequences, creating a unique and unprecedented legal anomaly. "In all
other areas of contract law those who break a contract are expected to
compensate their partner," writes Robert Whelan of London's Institute of
Economic Affairs, "but under a system of 'no fault' divorce, this essential
element of contract law is abrogated."
In fact, the legal implications go farther, since the courts actively
assist the violator. Attorney Steven Varnis points out that "the law
generally supports the spouse seeking the divorce, even if that spouse was
the wrongdoer." "No-fault" did not really remove fault, therefore; it simply
allowed judges to redefine it however they pleased. It introduced the novel
concept that one could be deemed guilty of violating an agreement that one
had, in fact, not violated. "According to therapeutic precepts, the fault
for marital breakup must be shared, even when one spouse unilaterally seeks
a divorce," observes Barbara Whitehead in The Divorce Culture. "Many
husbands and wives who did not seek or want divorce were stunned to learn
that they were equally 'at fault' in the dissolution of their marriages."
The "fault" that was ostensibly thrown out the front door of divorce
proceedings re-entered through the back, but now with no precise definition.
The judiciary was expanded from its traditional role of punishing crime or
tort to punishing personal imperfections and private differences: One could
now be summoned to court without having committed any infraction; the
verdict was pre-determined; and one could be found "guilty" of things that
were not illegal. Lawmakers created an "automatic outcome," writes Judy
Parejko, author of Stolen Vows. "A defendant is automatically found 'guilty'
of irreconcilable differences and is not allowed a defense."
Though marriage ostensibly falls under civil law, the logic quickly
extended into the criminal. The "automatic outcome" expanded into what
effectively became a presumption of guilt against the involuntarily divorced
spouse (the defendant). Yet the due process protections of formal criminal
proceedings did not apply, so involuntary divorcees could become criminals
without any action on their part and in ways they were powerless to avoid.
In some jurisdictions, a divorce defendant is the only party in the
courtroom without legal immunity.
Contrary to the assumptions of "change the culture" thinking, these laws
were not enacted in response to public demand: No popular clamor to dispense
with divorce restrictions preceded their passage; no public outrage at any
perceived injustice provided the impetus; no public debate was ever held in
the media. Legislators "were not responding to widespread public pressure
but rather acceding to the well-orchestrated lobbying of a few activists,"
writes Christensen. "Eclipsed in the media by other issues -- such as civil
rights, Vietnam, Watergate, and abortion" -- the new laws rapidly swept the
nation "with little publicity and no mass support."
In retrospect, these laws can be seen as one of the boldest social
experiments in history. The result effectively abolished marriage as a legal
contract. As a result, it's no longer possible to form a binding agreement
to create a family.
Quiet Legal Maneuvers
Though the changes were passed largely by and for the legal business, the
ideological engine that has never been properly appreciated was organized
feminism. Not generally perceived as a gender battle -- and never one they
wished to advertise -- divorce became the most devastating weapon in the
arsenal of feminism, because it creates millions of gender battles on the
most personal level. Germaine Greer openly celebrates divorce as the
foremost indicator of feminist triumph: "Exactly the thing that people tear
their hair out about is exactly the thing I am very proud of," she tells the
This is hardly new. As early as the American Revolution and throughout
the 19th century, "divorce became an increasingly important measure of
women's political freedom as well as an expression of feminine initiative
and independence," writes Whitehead. "The association of divorce with
women's freedom and prerogatives remained an enduring and important feature
of American divorce."
Well before the 1970s, it was the symbiosis of law and women's rights
that created the divorce revolution. The National Association of Women
Lawyers (NAWL) claims credit for no-fault divorce, which it describes as
"the greatest project NAWL has ever undertaken." As early as 1947, the NAWL
convention approved a no-fault bill. Working through the American Bar
Association, NAWL convinced the National Conference of Commissioners of
Uniform State Laws (NCCUSL) to produce the Uniform Marriage and Divorce Act.
"By 1977, the divorce portions had been adopted by nine states," NAWL
proudly notes, and "the ideal of no-fault divorce became the guiding
principle for reform of divorce laws in the majority of states." By 1985,
every state had no-fault divorce.
Today, feminist operatives employ similar strategies to encourage divorce
worldwide, often inserting it unnoticed and unopposed into programs for
"human rights," and unilateral divorce is now one of the first measures
implemented by leftist governments. When Spain's socialists came to power
last year, their three domestic priorities were legalized abortion, same-sex
marriage, and liberalized divorce. Iranian feminist Emadeddin Baghi writes
in the Washington Post that "a 20 percent increase in the divorce rate is a
sign that traditional marriage is changing as women gain equality." And
Turkey was required to withdraw a proposal to penalize adultery to gain
acceptance in the European Union, while divorce liberalization counted in
The High Cost of Divorce
The damage done by family breakdown -- especially to children -- is now
so well known that it hardly needs laboring. Children of divorced parents
suffer far more emotional and behavioral problems than do children from
intact families. They are more likely to attempt suicide and to suffer poor
health. They perform more poorly in school and are more inclined to become
involved with drugs, alcohol, gangs, and crime. These problems continue into
adulthood, when children of divorce have more trouble forming and keeping
stable relationships of their own. Through divorce, they in turn pass these
traits to their own children. All this entails social costs for the rest of
us, giving the public an interest in family preservation.
It might be one thing if parents were colluding to inflict this on their
own children, as divorce defenders like to pretend. Even given the social
consequences, a case might still be made that divorce is each couple's
"private decision," as Michigan Governor Jennifer Granholm recently claimed
when she vetoed a mild reform bill. But in the vast majority of cases, only
one of the parents imposes divorce on the children and the other parent.
Astoundingly, the parent who inflicts the divorce on the children is also
the one most likely to retain custody of them. In such cases, divorce isn't
remotely private; it amounts to a public seizure of the innocent spouse's children
and invasion of his or her parental rights, perpetrated by our governments
and using our tax dollars.
Indeed, civil freedom is perhaps the least appreciated casualty of
unilateral divorce. G.K. Chesterton once warned that the family is the most
enduring check on government power and that divorce and democracy were
ultimately incompatible. The repressive measures being enacted against
divorced fathers -- most of whom never agree to a divorce and are legally
faultless -- now include incarcerations without trial or charge, coerced
confessions, and the creation of special courts and forced labor facilities.
Recognizing the Problem
No one should have any illusions that reversing these trends will be
easy. The political interests that abolished marriage in the first place
have only grown more wealthy and powerful off the system they created.
Thirty-five years of unrestrained divorce have created a multibillion-dollar
industry and given vast numbers of people a vested interest in it. Divorce
and custody are the cash cow of the judiciary and directly employ a host of
federal, state, and local officials, plus private hangers-on. More largely,
the societal ills left by broken families create further employment and
power for even larger armies of officials. So entrenched has divorce become
within our political economy, and so diabolical is its ability to insinuate
itself throughout our political culture, that even critics seem to have
developed a stake in having something to bemoan. Hardly anyone has an
incentive to bring it under control.
In contrast with gay marriage, abortion, and pornography, politicians
studiously avoid divorce laws. "Opposing gay marriage or gays in the
military is for Republicans an easy, juicy, risk-free issue," Maggie
Gallagher writes. "The message [is] that at all costs we should keep divorce
off the political agenda." No American politician of national stature has
ever challenged involuntary divorce. "Democrats did not want to anger their
large constituency among women who saw easy divorce as a hard-won freedom
and prerogative," observes Whitehead. "Republicans did not want to alienate
their upscale constituents or their libertarian wing, both of whom tended to
favor easy divorce, nor did they want to call attention to the divorces
among their own leadership." In his famous denunciation of single
parenthood, Vice President Dan Quayle was careful to make clear, "I am not
talking about a situation where there is a divorce." The exception proves
the rule. When Pope John Paul II spoke out against divorce in January 2002,
he was roundly attacked from the Right as well as the Left.
Yet politicians can no longer ignore the issue. For one thing, the logic
of the same-sex marriage controversy may force us to confront divorce, since
the silence is becoming conspicuous and threatens to undermine the
credibility of marriage proponents. "People who won't censure divorce carry
no special weight as defenders of marriage," writes columnist Froma Harrop.
"Moral authority doesn't come cheap."
There is also evidence that the public is becoming not only aware of, but
increasingly impatient with, fallout from broken families. A 1999 NBC
News/Wall Street Journal poll found that 78 percent of Americans see the
high divorce rate as a serious problem, and a Time/CNN poll found that 61
percent believe it should be harder for couples with young children to
divorce. "Taxpayers who have preserved their own
marriages through personal integrity and sacrifice," Christensen suggests,
"may find it puzzling and offensive that state officials appear so willing
to dissolve marriages and to collectivize the costs."
Thus far, most proposals aimed at addressing the divorce issue have been
limited to the least costly -- and least effective. Requirements that
divorcing couples undergo waiting periods and counseling have passed in some
states (and form the substance of most "covenant marriage" laws). But at
best, such provisions merely delay the outcome. At worst, they place
psychotherapists on the government payroll or force involuntary litigants to
hire them. Either way, the therapists develop a stake in more divorce.
On the other hand, while simply banning groundless divorce shows more
determination, it's unlikely to be very effective, since it isn't practical
to force people to live together. An Arizona bill introduced in 2003, for
example, stipulated that a court "shall not decree a dissolution of the
marriage on grounds of incompatibility if: a) the wife is pregnant; or b)
the couple has ever had a child." Such measures may discourage break-ups
among observant Christians and could provide some legal redress against
desertion. But as Chesterton observed, a ban on divorce is mostly, in
practice, a ban on re-marriage. Under such a provision a spouse could simply
separate (with the children) and live in permanent adultery with a new
Such schemes lend plausibility to some of the irrelevant arguments of
divorce promoters: "No good can come from forcing people to remain in
loveless marriages, even in the misguided belief that somehow it is better
for the children," runs an editorial in the Daily Herald of Provo, Utah,
opposing a mild reform bill recently introduced. "Is it really good for
children to be raised in a home by two parents who don't love each other and
who fight all the time but who are forced to stay because of the law?"
These questions are red herrings. Divorce today does not necessarily
indicate marital conflict and is less likely to be the last resort for a
troubled marriage than a sudden power grab. Most divorces are initiated with
little warning and often involve child snatchings. In 25 percent of marriage
breakdowns, writes Margaret Brinig of Iowa State University, the man has "no
clue" there is a problem until the woman says she wants out. A University of
Exeter study found that in over half the cases there was no recollection of
major conflict before the separation. "The assumption that parental conflict
will cease at divorce is not only invalid," writes Patricia Morgan; "divorce
itself instigates conflict which continues into the post-divorce period."
Further, as Judith Wallerstein and Sandra Blakeslee found, few children
are pleased with divorce, even when severe conflict exists. "Children can be
quite content even when their parents' marriage is profoundly unhappy for
one or both partners," they write. "Only one in ten children in our study
experienced relief when their parents divorced. These were mostly older
children in families where there had been open violence." Divorce and
separation almost always have a more detrimental effect on children than
even high-conflict marriages. "The misery their parents may feel in an
unhappy marriage is usually less significant than the changes [the children]
have to go through after a divorce," says Neil Kalter, a University of
Michigan psychologist. Surveys of children by Ann Mitchell and J.T. Landis
found that most recalled a happy family life before the breakup.
How the Law Can Be Reformed
In any case, limiting no-fault divorce will never force people to live
together -- though done properly, it will provide strong incentives to work
at their marriages rather than dissolve them. Reforming divorce laws, first
of all, means re-introducing fault for violating the marital contract. It
will, in effect, restore justice to the legal proceedings. "The alternative
to liberal or 'no-fault' divorce is not no divorce," writes Whelan, "but
divorce which is granted only after due legal process to establish fault."
The obvious counter-argument, that failed marriages often entail
imperfections on both sides, does not justify abandoning all standards of
justice. "There is fault on both sides in every human relationship," Fred
Hanson acknowledged when the laws were enacted. "The faults, however, are
far from equal. No secular society can be operated on the theory that all
faults are equal." Hanson was the dissenting member of NCCUSL, which
designed no-fault laws. "To do justice between parties without regard to
fault is an impossibility," he warned. "I wonder what's to become of the
maxim that no man shall profit by his own wrong - or woman either, for that
Tragically, we now have the answer in today's perversion of the criminal
justice system by divorce-related accusations of domestic "abuse." Patently
fabricated charges are now rampant in divorce courts, mostly to secure child
custody and remove fathers, and the cry of "trapping women in abusive
marriages" has become the principal argument against fault-based divorce.
The irony is telling, since physical violence obviously is and always has
been grounds for divorce. The argument also reveals the totalitarian nature
of today's feminism. What feminists object to is being held to the same
standards of evidence as everyone else by having to prove their accusations.
Fault divorce would entail the "burden of proving that abuse had occurred,"
argues the Daily Herald. "It's not easy to accumulate medical records
detailing injuries, eyewitnesses, and a police record of domestic violence
calls to the house." It isn't? But that's precisely what the rest of us must
do when we accuse others of vicious crimes. What feminists want -- and
already have -- is the power to trample the presumption of innocence and due
process of law in order to evict fathers on accusations of ill-defined
"abuse" that cannot be proven because, in many cases, it did not take place
This is the inevitable consequence of abolishing objective standards and
allowing judges to create infractions out of whatever subjective grievance
or "abuse" a tearful spouse invokes. To operate effectively, fault must
entail objective, enumerated, and proven grounds that are understood at the
time of marriage. These grounds may vary somewhat among jurisdictions, but
spouses must have a reasonably predictable expectation of the consequences
of specific misbehaviors and violations of the marital contract. This basic
principle of justice is required of all other laws in a free society.
Further, to effectively deter divorce, fault must entail substantial
consequences. Or stated more positively, innocence must carry substantial
protections. While property considerations are not trivial, most important
is that marriage must protect an innocent spouse's right to be left in peace
with his or her children. Feminists complain that this punishes women for
leaving a bad marriage. But strictly speaking (and aside from the question
of whose behavior made it a bad marriage), it need entail no punishment at
all. It simply allows an innocent spouse to invoke the protections for which
he or she originally married.
This is the essential insight provided by the fathers in Massachusetts.
Though not all of them question no-fault divorce, their plight illustrates
why divorce reform will never succeed unless fault is tied to child custody.
Because most divorces are filed by mothers, the fathers' demands could
sharply reduce divorce and the stranglehold of the divorce industry.
Yet even this alone will prove insufficient. Divorce and custody are
connected with larger problems of judicial activism and corruption, and
judges can readily concoct justifications to rule in the best interests of
themselves and their cronies. The Massachusetts same-sex marriage decision
has unwittingly created common cause between family advocates and judicial
reformers. This alliance must be expanded, since divorce reform and judicial
reform are inseparable. As Gallagher writes, "People don't trust the legal
system to determine who committed a murder, let alone whose conduct
destroyed a marriage."
Today's family crisis is being attacked piecemeal by groups that hardly
talk to one another, each hacking at branches that proceed from a common
root: pro-family groups trying to forestall same-sex marriage, marriage
promoters trying to discourage divorce, fathers demanding equal rights,
African-American leaders encouraging family responsibility, and judicial
reformers pushing for improvement. Alone, none of these will reverse the
decline of the family. But taken together, they wield sufficient political
strength to challenge the formidable judicial-divorce machinery.
Something like this coalition is emerging in Virginia, where disparate
groups have teamed up to propose a "Family Bill of Rights." In addition to a
marriage amendment, legislators have introduced an amendment protecting "the
God-given rights of parents" to determine the upbringing of their children.
Stronger still, Catholic state senator Ken Cuccinelli proposes tying child
custody to marital fault, giving children the security of knowing they
cannot be torn from a parent unless that parent has already acted to destroy
their home. Together, these measures will give Virginia the strongest family
protection provisions in the Western world.
The Religious Dimension
But politicians and interest groups can only achieve so much; a central
role remains for churches. Family integrity will be secure only when
families are depoliticized and when the church, not the state, is both the
first recourse at the advent of conflict and the family's principal
guarantor against state encroachment. Our present predicament results partly
because churches (with only the partial exception of the Catholic Church)
abdicated these roles. Failure to intervene in the marriages it consecrated
and to exert moral pressure on misbehaving spouses left a vacuum that has
been filled by the state judiciary.
Reforming the family judiciary will therefore will create an immediate
demand for the services of morally vigorous pastoral communities, even among
those who previously viewed the church's role in their marriages as largely
ceremonial. No greater challenge confronts the churches today -- nor any
greater opportunity to stem the exodus from them, than to reinvigorate and
defend their own sacrament and the families created by it.
Stephen Baskerville is political scientist at Howard University and
author of Not Peace but a Sword: The Political Theology of the English
Revolution (Routledge Press 1993). This essay was made possible by a
fellowship from the Howard Center for Family, Religion, and Society.