Yet whenever I research marriage I can’t help but hear the familiar refrain from Pat Benatar: “Love is a battlefield….”
To mimic a popular retort, what’s up with that? Why are love and marriage such a paradox? Simultaneously desired and destroyed by those who seek it?
A great paradox exits in our culture, revealing that even marriage-morphing (be it cohabitation, same sex unions, or unilateral divorce) does not change the fact that authentic marriage remains very important to adult Americans. People want to be married, but the likelihood of marital success is negatively correlated with marriage substitutes. The work of researcher and sociologist Norval Glenn has caused him to surmise that “[t]his paradox can be resolved by assuming that the decline in the probability of marital success has resulted from forces external to values, attitudes and feelings concerning marriage.” [2]
The fact is there has been a steady decline in the commitment to marriage accompanied by a steady rise in the expectations of marriage. Glenn says, “Having a good marriage could remain a salient goal while the values and norms conducive to attainment of that goal become weaker. People could want and expect more from marriage while they become less willing to make the sacrifices and ‘investments’ needed for marital success.” [3] That is why the battlefield rages over marriage - from cohabitation, to homosexual partnerships to easy divorce.
But here’s the good news: the culture wars over marriage are making us all think – and think hard. Let’s look at the evidence.
(1) Family court judges are concerned about the high rate of unilateral divorce. J. Leah Ward Sears (Supreme Court of Georgia, retired, previously Family Court) recently discussed her concerns, and they were followed here on this blog. When marriage is deconstructed by one party to the union it is more than a breach of contract, it is a breach of covenantal trust, and harms all those dependent upon it.
(2) The democratic process continues to uphold marriage. Judicially, however, marriage continues to be deconstructed. Princeton professor Robert George lays out this governmental struggle and the possible results in his most recent piece published by the Wall Street Journal. “It’s a raucous battle, but democracy is working,” says Professor George. “If marriage is redefined, its connection to organic bodily union—and thus to procreation—will be undermined. It will increasingly be understood as an emotional union for the sake of adult satisfaction that is served by mutually agreeable sexual play. But there is no reason that primarily emotional unions like friendships should be permanent, exclusive, limited to two, or legally regulated at all. Thus, there will remain no principled basis for upholding marital norms like monogamy.” You can read the entire article here.
(3) Public support for homosexual unions is now down by 9% in the past few months. [See Maggie Gallagher’s Carrie Effect from National Review (read online PDF here). Ms. Gallagher, director of the Institute for Marriage and Public Policy in New York, details in her own cleverly witty style the decades of drama over the battlefield of marriage in a judicial strategy that may surprise you. She also suggests another cultural paradox. “There is a generation gap on gay marriage, but the biggest gap is between cultural elites and everyone else. The urgent job facing marriage advocates is to take an issue on which we have the agreement of almost 60 percent of the American people and translate that into politically effective organizations that can elect our friends and defeat our enemies. If we continue to fail to do so, our political opponents will use their cultural power to create an America in which traditional religious groups are redefined by the government as the moral and legal equivalent of racists. That was the point of the strange public outburst of hatred that ensued when Carrie Prejean [Miss California] said, ‘I believe that a marriage should be between a man and a woman.’” (Read my blog piece on those events here.) Gallagher continues, “Gay-marriage advocates understand that if you can persuade elites that gay marriage is inevitable, public opinion won't matter, because it will be silent. An idea that people are afraid to speak ceases to matter. That is their best hope, and our opportunity.”
Ms. Gallagher has said this sort of thing elsewhere, linking the need for individuals to not only speak truthfully, but to also remain committed to their own marriages.
In matters of the heart, no less than the market, a bigger investment means better returns. The benefits that marriage (but not cohabitation) brings are not small… marriage for most people is the means to health, happiness, wealth, sex, and long life. In love, victory goes not to the half-hearted but to the brave: to those ordinary people who dare to take on the extraordinary commitment marriage represents. [4]
This analysis resonates that marriage is a basic intrinsic good rather than a functional instrumental good, and the law cannot regulate happiness; it can only incentivize stability and welfare of its citizens. “Marriage is more than a private emotional relationship. It is also a social good.”
A Regent colleague (who is not a lawyer) once asked me what she could do about the battlefield over the breakdown of marriage in our culture. Robert George, Maggie Gallagher and Norval Glenn give us the answer – and it’s constitutionally guaranteed: free expression and continued commitment to marriage. From the voting booth to the kitchen table you can speak your mind with love, reason and compassion, and most importantly live it out in your own marriage, “happily ever after.” Authentic marital commitment and reasoned views make sensible policy, sensible conversation, and a sensible lifestyle - not built on emotion, but on a common good desired by all – and first and foremost by partners to marriage.
When Jesus was answering the Pharisees about divorce He reminded them that “it was not that way at the beginning,” (Matthew 19) referring to creation of one man and one woman who “For this reason a man would leave his father and his mother and the two would become one flesh.” (Gen 2:24) The problems with divorce and marriage alternatives are really all about a desire for authentic marriage - oneness of two individuals by Grand Design, for a lifetime. Anything else works to the detriment of the individual, the family, the community, and eventually to the detriment of society as a whole. Individuals, one marriage at a time, making marriage a lifetime commitment is the preeminent solution. This is the essence of family restoration.
And therein lies the paradox – marriage is deeply spiritual and requires unconditional commitment between a man and a woman with very human natures – making love a battlefield.
You can find some of Professor Kohm’s scholarship at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=183817#.
You can find some of Professor Kohm’s scholarship at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=183817#.
More of Professor Kohm’s scholarship on these issues is available at these sources:
What’s the Harm to Women and Children? A Prospective Analysis, in WHAT’S THE HARM: DOES LEGALIZING SAME-SEX MARRIAGE REALLY HARM INDIVIDUALS, FAMILIES OR SOCIETY? 79 (Lynn D. Wardle, ed. 2008).
On Mutual Consent to Divorce: A Debate with Two Sides to the Story, 8 APPALACHIAN J. L. 35 (2008).
Understanding and Encouraging Realistic Reconciliation in an Age of Divorce, 32 VBA J. 8 (June/July 2006).
Cohabitation and the Renaissance of Marriage (coauthored with Karen M. Groen), 17 REGENT U. L. REV. 261 (2005); cited in Lynn D. Wardle, What is Marriage? 6 WHITTIER J. CHILD & FAM. ADVOC. 53 (2006); Nancy Levitt, Pitfalls and Promises: Cohabitation, Marriage and Domestic Partnerships: Bibliography: Cohabitation, Domestic Partnerships, and Nontraditional Families Annotated Bibliography, 22 J. Am. Acad. Matrimonial Law (2009)( noting the exploitation of women and children).
Does Marriage Make Good Business? Examining the Notion of Employer Endorsement of Marriage, 25 WHITTIER L. REV. 563 (2004); cited in 6 U. PA. J. LAB. & EMP. LAW 865 (Spring 2004); Selected Current Bibliography on Labor & Employment Law, 98 NW. U. L. REV. 579 (2004); Daniel W. Olivas, Tennessee Considers Adopting the Louisiana Covenant Marriage Act: A Law Waiting to be Ignored, 71 TENN. L. REV. 769 (2004); Karen Turnage Boyd, The Tale of Two Systems: How Integrated Divorce Laws Can Remedy the Unintended Effects of Pure No-Fault Divorce, 12 CARDOZA J. L. & GENDER 609 (2006).
The Collateral Effects of Civil Unions on Family Law, 11 WIDENER J. PUB. L. 451 (2002); cited in John G. Culhane, The Heterosexual Agenda, 13 WEIDNER L. J. 759 (2004); Melissa Durand, From Political Questions to Human Rights: The Global Debate on Same-Sex Marriage and its Implications for U.S. Law, 5 REGENT J. INT’L L. 269 (2007).
Fairness, Accuracy and Honesty in Discussing Homosexuality and Marriage, 14 REGENT L. REV. 249 (2002) coauthored with Dr. Mark Yarhouse; reprinted at SOCIAL SCIENCE RESEARCH NETWORK www.SSRN.com, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=269418 (May 2002).
How Will the Proliferation and Recognition of Domestic Partnerships Affect Marriage? 4 J. FAM. STUD. 105 (2002); also available at http://papers.ssrn.com/sol13/papers.cfm. cited in Katherine Shaw Spaht, Revolution and Counter-Revolution: The Future of Marriage in the Law, 49 LOYOLA L. REV. 1 (Spring 2003); Lynn D. Wardle, Counting the Costs of Civil Unions: Some Potential Detrimental Effects on Family Law, 11 WIDENER J. PUB. L. 401 (2002); Michael Scaperlanda, Kulturkampf in the Backwaters: Homosexuality and Immigration Law, 11 WIDENER J. PUB. L. 475 (2002); Katherine Shaw Spaht, The Last One Hundred Years: The Incredible Retreat of Law from the Regulation of Marriage, 63 LA. L. REV. 243 (Winter 2003); Herma Hill Kay, “Making Marriage and Divorce Safe for Women” Revisited, 32 HOFSTRA L. REV. 71 (2003); Lynn D. Wardle, The Curious Case of the Missing Legal Analysis, 18 B.Y.U. J. PUB. L. 309 (2003); Lynn D. Wardle, 116 HARV. L. REV. 1026 (2003); Nancy K. Kubasek, Alex Frondorf and Kevin J. Minnick, Civil Union Statutes: A Shortcut to Legal Equality for Same-Sex Partners in a Landscape Littered with Defense of Marriage Acts, 15 J. LAW. & PUB. POL'Y 229 (Spring 2004); Appendix A, Law Review Articles citing Baker v. Vermont, Justin W. Starr, 18 BYU J. PUB.L 353 (2004); Nancy D. Polikoff, Making Marriage Matter Less: The ALI Domestic Partner Principles Are One Step In The Right Direction, 2004 U. CHI. LEGAL F. 353; Mary Kay Kisthardt, 19 J. AM. ACAD. MATRIMONIAL L. 223 (2005); Domestic Partnerships: What the United States Should Learn from France’s Experience, 24 PENN ST. INT’L L. REV. 683 (2006); Laura A. Rosenbury, Friends with Benefits? 106 MICH. L. REV. 189 (2007); Melissa Durand, From Political Questions to Human Rights: The Global Debate on Same-Sex Marriage and its Implications for U.S. Law, 5 REGENT J. INT’L L. 269 (2007); Erin Cleary, New Jersey Domestic Partnership Act in the Aftermath of Lewis v. Harris: Should New Jersey Expand the Act to Include All Unmarried Cohabitants? 60 RUTGERS L. REV. 519 (2008); Shahar Lifshitz, A Potential Lesson from the Israeli Experience for the American Same-Sex Marriage Debate, 22 BYU J. PUB. L. 359 (2008).
What do VAWA, Elian and Grandparents Have in Common? Federal Involvement in Family (Law) Governance, VIRGINIA LAWYER 18 (Feb. 2001); reprinted in ELIAN GONZALEZ: THE CRITICAL READER, Paul Allatson, ed. (published by the Institute for International Studies, Sydney, Australia)(2007).
Marriage and the Intact Family: The Significance of Michael H. v. Gerald D., 491 U.S. 110 (1989), 22 WHITTIER L. REV. 327(2000); cited in June Carbone, Which Ties Bind? Redefining the Parent-Child Relationship in an Age of Genetic Certainty, 11 WM. & MARY BILL OF RTS. J. 1011 (2003); Marie A. Failinger, A Peace Proposal for the Same-Sex Marriage Wars: Restoring the Household to its Proper Place, 10 WM. & MARY J. OF WOMEN & L. 195 (2004); Niccol Kording, Nature v. Nurture: Children Left Fatherless and Family-Less When Nature Prevails in Paternity Actions, 65 U. PITT. L. REV. 811 (2004); June Carbone, The Legal Definition of Parenthood: Uncertainty at the Core of Family Identity, 65 LA. L. REV. 1295 (2005); David M. Wagner, The Man Who Declines to be Socrates: Justice Scalia, Truth, and the Jurisprudence of Tradition, 12 WIDENER L. REV. 473 (2006); Mary Patricia Byrn, From Right to Wrong: A Critique of the 2000 Uniform Parentage Act, 16 UCLA WOMEN'S L.J. 163 (2007); Rena M. Lindevaldsen, Sacrificing Motherhood on the Altar of Political Correctness: Declaring a Legal Stranger to be a Parent Over the Objections of the Child’s Biological Parent, 21 REGENT U.L. REV. 1 (2008)).
The New Paradigm for the Feminine Mystique: The Authentic Women’s Perspective, 2 LIBERTY, LIFE & FAMILY 259 (June 1996).
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[1] Norval D. Glenn, Values, Attitudes and the State of American America Family Law in Action, A Reader 13, Margaret F. Brinig , Carl E. Schneider and Lee E. Teitelbaum (Anderson Publishing Co., 1999), citing the American Life Study by the Institute of Social Research at the University of Michigan, and the Massachusetts Mutual American Family Values Study in particular.
[2] Id.at 13.
[3] Id.
[4] Linda J. Waite and Maggie Gallagher, The Case for Marriage 46 (2000).
[5] William J. Dougherty, et al., Why Marriage Matters: Twenty-One Conclusions From the Social Sciences 6 (2002).
