Now that Legal Marriage Has Changed…

July 21, 2015

So, the U.S. Supreme Court has declared gay marriage a constitutional right (something that would disturb the actual writers of the constitution, but I digress).  Is there anything left to distinguish “marriage” and “sexual relationship with tax benefits and implicit (though entirely fictional) social approval”?

I do wonder what would happen if states revisited the concept of “covenant marriage“:

Once married, a husband and wife are expected to commit to a lifetime partnership. However,the law recognizes that some couples will want to separate or divorce. The covenant marriage provisions require a spouse to first obtain counseling and then prove one or more grounds for separation or divorce as listed in the statute. This is the key difference between the two types of marriage: in essence, a spouse has to prove fault by the other spouse. The grounds for legal separation are: Adultery by the other spouse; commission of a felony by the other spouse andsentence of imprisonment at hard labor, or death; Abandonment by the other spouse for one year; physical or Sexual Abuse of the spouse or of a child of either spouse; the spouses have lived separate and apart for two years; or habitual intemperance (for example, alcohol or drug abuse), cruel treatment, or severe ill treatment by the other spouse. The reasons for divorce exclude this last ground but include the other four.

Keep in mind that absent a legal divorce, remarriage is impossible.

Imagine if a state abandoned its current marriage scheme and replaced it entirely with near-permanent covenant marriages.  Imagine if it even treated foreign marriages (entered into in other states) with the same seriousness, meaning that divorces would not be permitted but for one of the causes above.  Such a law would have a legitimate interest: social stability and the provision for children.  Since gay people are permitted to adopt, the state has a legitimate interest in maintaining and enforcing the stability of any marriage relationship.

Granted, this would raise interesting questions of federalism.  But let’s say some maverick state like Texas decided to completely abolish its current marriage scheme, replace it with covenant marriage, outlaw divorce except for certain causes (as described above), and yet make this available to all persons or potential unions (whether gay, straight, or even polyamorous).  What would happen?  Clearly, many would simply drive across the border to some other state to get a quick divorce.  But what if other nearby states then followed suit (just as they did by enacting legislation defining marriage as between one man and one woman)?  Spouses desiring quicker, no-fault divorces may have to travel to Nevada or California to get those divorces.  But even then, imagine if Texas went a step further and disallowed remarriages in the absence of a showing of fault justifying the divorce of all prior marriages (this would raise constitutional “full faith and credit” objections, but set that aside for the sake of argument).  Then some divorcees would have to travel to other states to get second marriage licenses.  This could all be gender/orientation-neutral, of course, but a big hassle to those who desire “flexibility” to end their marriage.

If a state went this route, I wonder how many people (gay or straight) would decide to get married at all in such a state.  Marriage rates would probably decline (even dramatically) in such states, except among religious communities and the most serious of secular relationships.  But, wouldn’t those unions be stronger?  And if so, would more potential spouses (particularly women) be inclined to demand covenant marriage from their partners to avail themselves of this stability for themselves and their children?

At the very least, this would be a way for a state to voice some form of dissent to the recent Supreme Court decision in Obergefell v. Hodges.  The state would essentially be saying, “ok, Supreme Court, you’ve had your fun, but now we will create a form of marriage even stronger than before, so strong that it would be nearly disadvantageous to go through with it.”  Overall, would this be a good thing or a bad thing?

Speaking for myself, a few weeks ago I would have told you that I’d consent to gay marriage if we could take away no-fault divorce (essentially making all marriages covenant marriages).  I believe marriages across the nation would be far more strengthened by a sense of permanence than by a sense of “at least we’re a man and a woman.”


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