Don't lecture

[Michael deHaven Newsom]

I wonder whether a liberal theory about entry into civil marriage can live
easily with a restrictive theory about the termination of a marriage --
children or no children.  I suspect that the "old" ways simply bottled up the
tensions and the contradictions inherent in the old system.  The "revolution"
had a lot to do with a new set of attitudes about those tensions, for they do
exact, in some cases, a rather fearsome cost.  Before we go back to the old
ways, perhaps we ought to consider tightening up the rules regarding entry into
marriage.  Every permutation results in costs.  The important question is to
identify the costs that each relation between liberal and restrictive rules
would impose and upon whom would the costs be imposed in the various
permutations.

At this point I share Koppelman's concern that we simply do not have enough
hard data to be able to get through this exercise safely.

Michael deHaven Newsom
Howard University School of Law

"Scarberry, Mark" wrote:

> A Burkean response to Andrew's point would be that we did tinker with the
> institution of marriage by making divorce very easy to get--and as Burke
> would have warned, we have (seemingly) suffered serious consequences as a
> result. Perhaps the Burkean approach is to go back to the traditional legal
> structure.
>
> In any case, the harm (IMHO and without empirical evidence) is that the
> effect of easy divorce is to cheapen the institution of marriage and to
> condition the attitudes of those who enter into marriage, because couples
> now can go into marriage with the understanding that if it doesn't work out
> there is a fairly easy escape hatch. If there were no easy escape hatch
> couples might work harder at making their marriages work well; the presence
> of the escape hatch is a disincentive to hard work that might cause a shaky
> marriage to turn into a very good marriage.
>
> Mark S. Scarberry
> Pepperdine University School of Law
> mscarber at pepperdine.edu
>
> -----Original Message-----
> From: Andrew Koppelman [mailto:akoppelman at NWU.EDU]
> Sent: Monday, October 25, 1999 12:21 PM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: Re: Don't lecture
>
> I continue to be troubled by the anecdotal basis of the proposals that I'm
> reading.  The decision to divorce is about as intimate and personal as any
> in someone's life.  I have a number of divorced friends, and I am confident
> that, with respect to many of them, I do not know the whole story about
> what made their marriages break up, much less what would have happened had
> the law forced them to stay married.  With respect to the divorces of
> casual acquaintances or strangers, my impressions are even less reliable.
> This whole area seems like a classic example of the vices of centralized
> decisionmaking.  I still need to hear a reason why I should think that
> transformation of the law will do more good than harm in this area.
>
> I'm particularly surprised to read passages like the following by my friend
> Michael McConnell, whom I normally think of as a Burkean conservative:
>
> >David Guinn reminds us that the law cannot save marriages, and he is
> >right, and it is important not to forget that. But the issue on the
> >table has been what what kinds of relationship merit special blessing
> >and support from the state. One answer to that is: unions that are
> >long-term, ideally life-long. In constructing what we mean by
> >"marriage," on this theory, it makes little sense to permit quickie
> >divorces. As David Guinn reminds us, public sanction for long-term
> >relationships is not a guarantee, but presumably the point of having
> >a public policy of "marriage" is to affect behavior in some way. To
> >allow quick divorces for trivial reasons or no reason at all does not
> >seem consistent with the reasons for granting a special status to
> >"marriage" in the first place.
> >-- Michael McConnell (U of Utah)
>
> I would have thought it obvious that we are not "constructing" an
> institution.  We have an already-existing institution that we have
> inherited from earlier generations.  We aren't deciding whether to
> construct it from the ground up; we are deciding whether to keep, tinker
> with, or smash what we've already got.  Burke's great insight was that,
> before entertaining proposals to transform institutions, we need to have
> good reason to think that such transformation will make the world better in
> some tangible way.  The failure of some institution to conform to our
> abstract theory of it is not sufficient reason to change it.  I'm still
> waiting for some evidence that changing the law of marriage will make
> things better.  David Wagner offered the most concrete response to this:
> "I believe Wallerstein and Blakeslee asked children of divorce whether they
> would have preferred that their parents remain together even WITH the
> bickering et al., and they overwhelmingly answered yes."  This, however,
> tells us only about children's (possibly overoptimistic) predictions about
> what the failure to divorce would have meant.  This is imperfect evidence
> of what would in fact have happened.
>
> ________________________________________
>
> Andrew Koppelman
> Assistant Professor of Law and Political Science
> Northwestern University School of Law
> 357 East Chicago Avenue
> Chicago, IL  60611-3069
> (312) 503-8431
> akoppelman at nwu.edu
> ________________________________________