Monday, October 6, 2014

The new strategy

My friends, we need a new strategy to stop same-sex marriage.

In some ways, I think we’ve been making some of the same mistakes that were made when the abortion issue first began.  It’s not surprising.  We Americans like to think of ourselves as a lawful people, and we expect, when a whole state votes a certain way to protect life or defend marriage, that such legislative decisions will be respected by our courts.

It is long-since past time to realize that our courts are staffed, by and large, by power-hungry narcissists anxious to leave their marks on history.  Twisting and turning in the prevailing winds of the zeitgeist, our nation’s judges are nothing but black-robed tyrants bent on destroying the rule of law and replacing it with the rule of judges.  The recent events regarding the sickening fantasy called gay “marriage” are just one example.

But while I don’t advise anyone to give up the legal fight--it is far too early for that--it is time for us to take this fight in a new direction.

My idea is simple.  We need a consensus of people of faith and people of reason to go after one of the biggest and most deadly weapons of marriage destruction.  We need to form a coalition to end no-fault divorce in America.

No-fault divorce got its hooks into the destruction of marriage long before gay couples started insisting that gender difference in marriage was optional instead of being, you know, the whole point.  With no-fault divorce every single marriage license in states which passed such laws went from being contracts with a certain expectation of durability or even permanency to contracts which can be dissolved easier than a business partnership.  Not only that, but most contracts require both parties to be involved in any dissolution; most no-fault statutes permit a marriage to be destroyed by one person for no reason at all, leaving the other person an innocent victim to his or her spouse’s random act of cruelty.

Because of no-fault divorce, most marriage licenses aren’t worth the paper they are printed on.  Marriage has become a sort of “at-will” state, with either party to the contract completely free to walk away at any time for any reason, or no reason.

Here are some of my ideas, in no particular order:

1. Demand legislation to end no-fault divorce in every state where it exists.
2. Require strict criteria for divorce that would include abuse, adultery, and abandonment, but would also require a high level of proof for anything other than abuse.  (I make that exception because it is unfortunately known that even with no-fault divorce, abused spouses find it hard to leave their abusers, and we don’t want to make things worse for them.)
3. Even if a divorce proceeding is allowed to go forward, require a minimum of two years between filing and the decree for a marriage in which there are no children, and a minimum of five years between filing and decree for a marriage in which there are children (again, I would exempt abuse cases, but nobody else).  It should be difficult to end (legally; Catholics don’t believe valid sacramental marriages can end at all) a civil marriage, and especially difficult if there are children of the marriage.  And it should be impossible to enter a “new” marriage right away.  If the state has an interest even in marriages between two adults who can’t possibly generate children, then the state’s interest should include promoting the durability of that marriage.  Anybody who doesn’t agree can just avoid getting married in the first place.
4. During the time lapse between filing for the divorce and receiving the decree, require marital and family counseling.  For those without children, a minimum of one year of counseling that is geared toward reconciliation should be required; for those with children, a minimum of three years of counseling should be required.  The third year of counseling for those with children who have irrevocably decided on divorce should be focused on the couple’s ability to engage with each other in a civil and friendly way for the sake of the children.  The completion of this counseling will be a necessary part of custody arrangements.
5. To minimize divorces in the first place, require a waiting period of three months (or more) between the application for a marriage license and the actual marriage ceremony.  This could be waived in certain circumstances such as unexpected military deployment but would be generally applied.

Some people may complain that this will make marriage harder for people.  My answer to that is: Good!  Marriage shouldn’t be so easy to enter and so much easier to leave.  There should be no quickie Vegas weddings and no quickie divorces, either.  Marriage is already treated like a cultural joke of sorts--it’s just the big wedding party for the two fornicators who have been shacking up for years while they saved up for their Hollywood wedding extravaganza in all too many cases.  Having actual rules that would make it harder for people to leave a marriage might make people realize that marriage is a serious business.

And for those who object that my ideas would make the marriage rate decline--it’s already in a free-fall.  Many people no longer see a reason for “that piece of paper.”  They know in their hearts that that piece of paper--the civil marriage license--is meaningless in the shadow of no-fault divorce.  Those who marry in churches or synagogues or mosques which teach that marriage is permanent are an exception to that rule, but most of them wouldn’t be deterred by the rules I’m proposing anyway.  If anything, the young people whose religions take marriage seriously would be heartened by seeing City Hall stop treating it as a lewd joke.

Would my rules end same-sex “marriage?”  Not by themselves, perhaps.  But when fewer than 2% of all Americans identify as gay and only 600,000 of those are in some sort of domestic partnership that is attempting to look like marriage in the first place, I think ending easy divorce would impact the demand for gay “marriage.” In most states that have passed gay “marriage” laws, an initial rush to the altar has been followed by a whole lot of nothing, illustrating that few gay people even want to pretend that their relationships are anything like marriage.

If we can reform marriage in America to be something that is much harder to break apart, we will be doing a great good thing for most marriages.  And, as a side effect, I’d be willing to bet that the vast majority of gay couples would look at the new rules and decide that civil marriage isn’t really what they want--because as it stands right now a vast majority of gay couples have already decided they don’t want marriage itself.  What they want is “marriage rights” to use to beat those of us who believe that gay sex is gravely sinful into silence.  And as long as marriage is a trivial legal state that can be broken more easily than a software agreement, we’re the ones handing them the club.


Roger Cook said...

We might think of starting with something smaller:

In divorces where no fault is alleged, the non-filing party gets full custody of any children, all indivisible assets (houses, mostly), is owed child support, and anything else we can think of that would make divorce a decision where if you pull the trigger, you get out with pretty much nothing.

Red Cardigan said...

Roger, I like your thinking on that. This is the sort of thing we need to consider.

John InEastTX said...

We Americans like to think of ourselves as a lawful people, and we expect, when a whole state votes a certain way to protect life or defend marriage, that such legislative decisions will be respected by our courts.

Red, you know as well as I do that the courts will not enforce an unconstitutional law no matter how many people in a State vote for it.

That's one of the roles of the judicial branch - to rule on the Constitutionality of laws passed by the Legislature and strike down laws that violate the Constitution.

As for your proposed reform - Louisiana has a marriage option called Covenant Marriage that makes divorce harder. Very few people choose that option.

John InEastTX said...

In most states that have passed gay “marriage” laws, an initial rush to the altar has been followed by a whole lot of nothing, illustrating that few gay people even want to pretend that their relationships are anything like marriage.

Your first clause contradicts your second. The fact that there is a rush to the altar indicates that there are more than a few people who want the protections of law for their marriages.

L. said...

I'm honestly not sure if this is satire.

On the chance that you're serious, I'd say you touched upon the reason why this change probably wouldn't make the difference you want it to, when you said, " Anybody who doesn’t agree can just avoid getting married in the first place."

I'm one of those people who openly admits that I only civilly married my partner to get the legal benefits (immigration- and company housing-related, in our case). If marriage were made less legally appealing, people like me would just stop getting married at all, and then there would be even more kids born out of wedlock.

L. said...

"... the big wedding party for the two fornicators who have been shacking up for years while they [paid back student loans]..."

You nailed it! :)

Deirdre Mundy said...

At this point, I'm kind of confused about why we have civil marriage at all...

What interest does the state have in ratifying your long-term romantic entitlement?

Now that wedlock is totally divorced from the idea of children, why should the state encourage it?

And if gay partnerships get the benefits of marriage, why shouldn't a son living with and taking care of his aging mother recieve the same benefits? A live-in caregiver arrangement provides more benefit to our current society than a romantic partnership!

Pat said...

2 questions: Is there any empirical evidence that fault-based divorce works better than no-fault divorce? Is there any empirical evidence that US citizens want fault-based divorce back in play?

Clayton Hennesey said...

Red, this is why there are blogs, so you can make cases for these sorts of ideas here where they won't bother very many people.

If you want to effect political change on the issues you're articulating here, you'll need to start by knocking on your next door neighbor's door and making these arguments to them face to face while encouraging them to join you.

Politics is always more hands on than writing a paper.

Svar said...

This is the sort of thing that really makes me wonder.... Do most conservative Christians really think that preventing gay "marriage" and abortion is really going to change what ails the West?

I am a young Catholic man who is going to college this fall and since I hang around with the Christian groups, I am surprised with their complete lack of vision and political awareness.

It seems to me that they think that as long as we get rid of abortion and gay marriage, we will achieve utopia.

The rot is deep and it was pointed out by many great thinkers from Tocqueville, Burke and more modern ones like Spengler, Heidegger, and Evola have seen the decay within the American Experiment from the very beginning. Any real change will begin from acknowledging the monumental failure of democracy. There needs to be a vast overhaul of the American regime, similar to how the Constitutional government was created to replace the Articles of Confederation government. The Constitution has been ineffective at prevented what many of the Founders predicted from the very beginning probably because Americanism is an inherently unstable ideology to begin with.

There are far more pressing issues at the moment like the constant wars overseas, our sketchy and unfruitful alliances with the UAE, Saudi Arabia, and Israel, waves upon waves of non-stop mass immigration from countries that we should not have immigrants from, the treacherous nature of American politicians and businesses, the deleterious impact on our precious natural land, better relations with Russia, and the inefficiency of our government which is based around the false god of equality as opposed to serving the nation. America needs a national rebirth not victory in the little skirmishes of the Culture War. Victory should entail control of the entire nation and the direction we want it to go. Once we have that, we won't need to deal with petty democratic machinations to stop abortion or gay "marriage", it will all fall in place.

John InEastTX said...

Victory should entail control of the entire nation and the direction we want it to go. Once we have that, we won't need to deal with petty democratic machinations to stop abortion or gay "marriage", it will all fall in place.

I remember the Religious Rebellion of 2019. Buncha wackos thought they could march in and set up a tin-pot theocracy.

Well, they marched in all right, but not all of them walked out. Seems that folks don't like being told what to do by earnest young men who are sure God was on their side.

I remember one kid, maybe in his late 20's. No more fanatical fire in his forever-closed eyes anymore.

"I wonder if that was Svar..." I thought to myself as I positioned my backhoe to dig a burial pit. "Kid was so sure he knew what American needed...too bad for him that America didn't agree..."

Siarlys Jenkins said...

As John in East Texas points out, the Second Amendment puts good weapons in many hands, and they can point both ways. (A paraphrase of Salvor Hardin's favorite proverb).

I have some sympathy with creating incentives for people entering into marriage to take it seriously, and for marriages not to dissolve the first time someone throws a fit over some little thing. But ultimately, the state is a notoriously incompetent arbiter of who is worthy of either marriage or divorce.

I think we will have to leave "taking it seriously" up to advocacy and voluntary compliance.

As to new strategies on same sex marriage, I've been suggesting for some time that those opposed should stop falling into the trap of letting their opponents define the question. Someone needs to go into court and say, your honor, the state need not show rational basis, nor meet heightened or strict scrutiny, because there is no prima facie showing of discrimination.

Marriage laws make no mention of homosexuality, nor of homosexuals as a class. No individual person is denied the equal protection of the laws. The distinct existence and complementarity of men and women was not created by law, but is a biological fact predating human society and culture. That the legislature chooses to license, regulate and tax this particular bond, while ignoring or overlooking others, denies nobody the equal protection of the laws. The Fourteenth Amendment does not require the legislature to treat alike,things that are in fact different.

But, for those with a deep religious opposition to same sex marriage, that may avail little in practical terms. It seems likely that in the next 20 years, most states will legislate marriage licenses for same sex couples. That will be a kind of legal fiction, but a perfectly serviceable one.

Svar said...

On top of all of that, John, the American Empire is on the verge of death. I say the sooner the better. The American Empire must die for the American people to survive.

Either way, the world is moving in a different direction now. Russia is gaining prominence and I will tell you this, Russia doesn't give a damn about puerile Americanist abstractions.

Pat said...

"... the false god of equality as opposed to serving the nation .... Victory should entail control of the entire nation."

Worshiping the State is not why we founded America. if you want to do that you're in the wrong country.

Pat said...

SJ, you are overreaching when you say "The Fourteenth Amendment does not require the legislature to treat alike,things that are in fact different." everything is different in some way. The question is, is it materially different?

The fact that 2 octogenarian's cant reproduce - the fact that a prisoner can't even be intimate with his bride, have been adjudicated as not materially different from the marriage of 2 20-year olds that are hot for each other and as fertile as rabbits. Many other kinds of marriages have been deemed not materially different from what the neighbors have (or claim to have). To draw the line at allowing committed gay couples raising children in a safe home access to marriage is unfair by any reasonable standard.

Many of them model their lives and their families on the 1950s ideal of american family life with 2.2 kids, a woody wagon and the dream of college.

If we are going to deny marriage to those we deem not worthy we have more straight couples to look at than gays.


John InEastTX said...

Svar, I'm not sure what Russian's alleged upcoming prominence has to do with a proposed theocratic coup in the US.

You might reconsider working within the current democratic framework. I think you overestimate the likelihood that things will just fall into place in the way you prefer, should the current system be overthrown.

Nan said...

I'm not sure what your thought process is here but there's no way your vision can become a reality. I live in a state in which all property accumulated after marriage, except gift or inheritance is marital property and if the couple divorces, they're each entitled to half if the equity. While it's true that you can't split a home, when ownership changes the home must be refinanced if there's a mortgage; thus, while it's typical that the custodial parent ends up with the house, that house also must be refinanced to a) pay the other party their portion of the equity; b) remove that party's obligation for the mortgage.

If you look to history, when women were considered chattel and all property was the man's, even if she owned it outright before the marriage, and while the mother might get custody of the children when they were small, they would return to the father's custody, as they, too, were chattel. Note also that even her clothing was deemed the husband's property.

That gave way to the philosophy that the mother always got the children and the house, which is also unequitable. The current way of doing things, which preserves both parties property rights and determines child custody based on the best interests of the child, is equitable.

I know you mean well, but really, your suggestions are inappropriate.

Siarlys Jenkins said...

Pat, your argument is a laundry list of arguments I haven't made, and don't see any merit in, which you pronounce to be without merit. They do not in the least refute anything I said.

It doesn't matter whether octegenarians can reproduce or not. It doesn't matter that a prisoner cannot conceive a child or impregnate a wife -- actually, a fair number do so, but that too is irrelevant.

If a state does not choose to license, regulate, and tax same sex couples and call that "marriage," that is because the state sees nothing to take notice of in what, if anything, two men or two women are sharing with each other. There is no constitutional reason the state must do so.

There is no discrimination against any class of people.

JohnE hits the problem with facile reliance on revolution neatly on the head -- seldom do events take the course hopefully set forth in pre-revolutionary tracts.

Nan, there is a very simply answer to your doubt. Erin is advocating that state marriage laws be AMENDED from what you describe to something quite different. The laws you are used to were all adopted within the last fifty years, and could easily be changed again, if enough people saw merit in doing so.

Pauli said...

Bai MacFarland is the expert on this subject. She has been fighting this front in the culture war for years.