Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, November 29, 2010

"Who Needs Marriage? Kids Do"

Attorney and commentator Jennifer Braceras has an op-ed in today's Boston Herald responding to Time Magizine's recent cover story entitled "Who Needs Marriage" and a recent Pew Study on the state of marriage and out of wedlock births in the United States.  If she is correct in her assessment, as I think she is, what can be done about this crisis and what role can - should - law play?


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One of my practice areas is divorce law, and I have been and am involved in more than a few cases where one spouse has suddenly decided that they'd rather have "freedom" than have to stay around and deal with life's problems. The only way out of this morass is to reverse several damaging trends that have been ongoing in American for so much time that it would require re-engineering society to pull them off. (I suspect this puts me in the "pessimist" camp.) When you question how law can help, if at all, I can see several ways:

1. Get rid of no-fault divorce nation wide. Even if one state got rid of it, simply traveling to another state to file would dodge it. Alternatively, require that the filing spouse file in the state of the most recent W-2 or drivers' license unless both spouses now reside in another state, and then states could implement no-fault on a wider basis.

2. Increase the availability of fault finding during a divorce, including adultery, and make available an independent action for alienation of spouse, such as in North Carolina.

3. Make divorce much more difficult to obtain, absent direct evidence of abuse, drug use, etc., and make the waiting period for a divorce one year long.

4. Require the parties, if they had a separate religious ceremony, to obtain a certificate from their church giving permission for the divorce.

5. Require any man bearing a child out of wedlock to enlist in the armed forces or public service in order to obtain insurance and support for the child, if he otherwise does not have a job or insurance.

Those are a few thoughts, all but impossible to implement in our society as it stands, and I see little hope for their implementation.

Posted by: Jonathan | Nov 29, 2010 12:48:28 PM


If you are a lawyer and an officer of the court wouldn't your suggestion in No. 4 be a violation of your oath to uphold the laws of this country, as it suggests a clear intrusion of religious authority into a legal matter?? The Church might be an acknowledged stand-in for the State in marrying people where there is no dispute. But where rights might be violated clearly the Church is not a legally competent authority.

Posted by: Peter Paul Fuchs | Nov 29, 2010 12:57:23 PM

Not at all, Peter.

One way is that the religious ceremony would be treated as a contract with a third-party beneficiary (namely, the Church community). The beneficiary could enforce the contract or release it, based upon contract law. Even now, courts can enforce employment contracts between pastors and congregations. Rights are not violated when two parties agree to a contract with a third-party beneficiary which can step in and enforce its own rights in a matter. Of course, this calls up a specific performance problem - pacta sunt servanda - which Justice Holmes (among others) gutted from contract law in the United States.

Posted by: Jonathan | Nov 29, 2010 1:09:02 PM

Well, you are very clever, I'll admit. But it sounds like a Faustian contract to me. Have straight people just considered having happier marriages as an incentive to more long-lasting bonds?? It takes realism for happiness, not theocratic fancies.

Posted by: Peter Paul Fuchs | Nov 29, 2010 1:55:32 PM

I agree with Jonathan. No fault divorce has caused enormous damage to children. Divorce is a very, very destructive thing. Secular society should allowed it only as a last resort.

Posted by: Dan | Nov 29, 2010 7:37:17 PM

The above suggestions seek to create some sense of authority outside the individual, some sort of moral guidance, to seek "to make those to whom [law]...is given, good, either simply or in some particular respect," following Aquinas. John Haldane termed the current dominating public philosophy of the West as "consciousness-centered utilitarianism or, equivalently, hedonistic
consequentialism." This is the view, in Haldane's words that, "Human beings are subjects of consciousness residing in the extended bodies that also serve as instruments for the production of
gratifying experiences." So long as this is the dominant view, marriage cannot survive - law exists only to prevent one from intruding on another's self-gratification, and to enable those who have "run out" of gratification (such as in an "unhappy" marriage) to find more of it, within or without the marriage. Most of our legal analysis is premised on this calculation - I suspect it even underlies, in large part, the health care bills and similar legislation.

Posted by: Jonathan | Nov 30, 2010 9:23:44 AM

"Human beings are subjects of consciousness residing in the extended bodies that also serve as instruments for the production of gratifying experiences."

That is a very elegantly put -together notion, I'll agree. But the more spiritualized view you imply as a counterweight to it, as the only real bolster of marriage, is not the only one available, even philosophically . You've got a buffet of potential philosophies from Husserl to Wittgenstein, the latter having been seized up by some very stringent conservatives for just that reason. But don't forget what and where we are talking about. This is marriage in the good old US of A. We have an Enlightenment tradition which might lead to the view in the quote, but also freedom of belief which means that very node of consciousness in an extended body can be interpreted any way you like. The quote does not enshrine a dogmatic metaphysics by which the state must operate, only as a limit point, but not even a definite one. If you willfully damage another's extended body you can be held accountable, but damage to consciousness (as opposed to the biological ability to be conscious) is a more fuzzy issue, but not ruled out by way of "pain and suffering" . Your idea that the notion in the quote dogmatically or even practically would make marriage unworkable makes little sense. Because the state is never kept from considering other layers, and certainly juries are not de facto. Regardless we do have have a reasonable place to begin. And can anyone deny that it has to begin with the "extended body", in a society of mixed metaphysical views. . What would the alternative be, a law detailing how one's soul can be treated??

Posted by: Peter Paul Fuchs | Nov 30, 2010 3:02:35 PM

I am curious. Which is worse for children: civilized divorces or parents who cannot get along?

sean s.

Posted by: sean samis | Nov 30, 2010 6:07:08 PM