Constitutionalizing Social Values

[Scarberry, Mark]

Frank and Mae argue that opponents of same-sex marriage must simply be
motivated by anti-gay animus. That is established, Frank and Mae suggest, by
the failure of same-sex marriage opponents to advocate the abolition of
divorce.

Allowing divorce may weaken the institution of marriage. But of course
allowing alcohol use almost certainly causes much harm in our society
(including spousal abuse), and we saw what happened when we tried
Prohibition. We might wish it were otherwise, but divorce and alcohol use
are both entrenched parts of our society. They are probably here to stay.

Moral consistency does not require those who wish to preserve the value of
traditional marriage to advocate abolition of divorce, any more than it
requires those who wish to prevent spousal abuse to advocate Prohibition.
Moral consistency does not require us to waste our energy on attempting the
impossible. 

Additionally, though I'm not an expert on the matter, I believe divorce has
been to some extent available for our entire nation's history. The right to
dissolve a marital union for at least certain reasons is part of our history
and tradition, and not necessarily a bad part.  

Many of us may believe that a limited permissibility of divorce does not
weaken the institution of marriage; after all, we do not consider contract
law doctrine dealing with breach to weaken the institution of contracting.
When one party's obligations are discharged due to the other party's total
breach, the particular contract involved has been "weakened" in a sense, but
the practice of contracting has not been. The law of breach may in fact
strengthen the institution of contracting. Who would enter into a contract
if a total breach by the other party would not relieve us of our
obligations? Marriage is of course a very special kind of contract, but
isn't it likely that a complete ban on all divorce for any reason would lead
many people not to marry? More children then would be harmed by being raised
in less than optimal settings. (I speak statistically here; of course many
single parents do a fine and heroic job of parenting.)
 
Many of us also believe that the present regime of no-fault divorce does
weaken the institution of marriage. Yet that regime came into being because
fault-based divorce laws created many problems. It is not clear at this
point that a return to fault-based divorce laws could obtain sufficient
public support--again, once a practice is permitted, such as use of alcohol
or easy divorce, it is very hard to eliminate it. There is, I think, no
agreement on how to mitigate the problems that were caused under the prior
fault-based regime, were we to return to it.

As a result, many of us may think that no-fault divorce has damaged the
institution of marriage, and caused harm to children, but that there is
little now that can be done about it. That does not mean that we cannot
oppose further damage being done to the institution of marriage by the
adoption of a novel definition of marriage that, in our view, undermines its
social purposes. 

Those who support same-sex marriage generally say they support the
institution of marriage and want its benefits to be available more widely.
If divorce must be eliminated in order to protect the institution of
marriage, why don't *supporters* of same-sex marriage advocate for abolition
of divorce? If they don't, does that show that they do not care about the
institution of marriage? Should we thus discount their claims that allowing
same-sex marriage will not harm the institution of marriage? Do Frank and
Mae advocate abolition of divorce? Even if they do not, I will not discount
their arguments in favor of same-sex marriage. I'd appreciate receiving the
same courtesy.
 
Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: Mae Kuykendall [mailto:mae.kuykendall at law.msu.edu] 
Sent: Wednesday, February 25, 2004 2:56 PM
To: conlawprof at lists.ucla.edu; crossf at mail.utexas.edu;
trevor-morrison at postoffice.law.cornell.edu; GCSISK at stthomas.edu
Subject: RE: Constitutionalizing Social Values



Frank Cross wrote:  

"To me, when conservatives favor a ban on gay marriages but don't favor
a ban on divorce, that tells me that their main concern is not the
sanctity of marriage, their main concern is being anti-gay."

The comment is telling.  For legislation, the jurisprudence that
forbids legislation based primarily on animus against a group might come
into play.  The useful feature of a constitutional amendment, if
successful, is that it is exempted from the application of that notion.


Perhaps the constitutional amendment process carries a similar
safeguard, in that there is appreciation by a sufficient number of
citizens of the anti-caste principle to militate against success by the
proponents of the amendment.  The amendment process is an opportunity
for civic reflection on constitutional values, albeit in a charged
atmosphere.

Mae Kuykendall



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