Free Forty Million Americans: Privatize Marriage
Or When Premises Collide
by
Stehen Safranek
Civilization
is built upon the family. It is the primary relationship within
which all values are transmitted to future generations. From the
family grows the clan and the tribe, and ultimately the city and
the state. Although this idea of the beginning of the state may
not be recognized in the 21st century, the concept of
marriage and family is at the heart of a political and social debate
throughout America and beyond.
Debate about
marriage is necessary because its costs and consequences impact
all of us. It is at once the most personal and the most public of
acts. In the debate about marriage, those who stand for "traditional"
marriage and those who want to adjust that term to modern times
all work within a worldview that places the state at the heart of
the debate. Into that debate we must inject the view that persons,
and voluntary groups of persons should not have their behavior mandated
by the state.
The failure
to allow voluntary organizations to help manage marriage is perhaps
understandable, but it is the core source of many of the problems
we confront today.
Marriage is
an ancient institution; like all human institutions it works best
when the parties involved know that their various investments will
be respected and the intention of the marriage contract enforced.
This is the essence of "purposeful behavior" as viewed by economists
such as Murray Rothbard.
We do not willingly
invest in relationships or businesses if we do not have a reasonable
expectation that our investment will be safe and realize the type
and kind of profit we expect. Through most of human history marriage
has been the institution that was used to ensure the safety of the
children and the perpetuation of subsequent generations; an expensive
endeavor. The idea of natural rights was not at issue, marriage
was originally formed before any known system of philosophy and
before any understanding of the causality described through economics.
Indeed, it was marriage that gave rise to economics not vice versa.
The current
chaos surrounding marriage cannot be resolved by more state action.
Instead, if the state uncouples itself from marriage and allows
persons to be "purposeful" actors in marriage, many of the problems
with marriage will be resolved.
Marriage is
an institution in which humans invest enormous capital; it is therefore
important that those investments be protected. Indeed, marriage
may be for some an investment that will last for more than 50 years.
Consequently, like long terms bonds on public works projects, stable
expectations are critical. The term capital here cannot be narrowly
conscripted as cash or its equivalents. Instead, capital is the
entire process in which persons invest themselves.
Marriage involves
three critical personal, social and legal aspects all of which are
"capital" investments for those entering marriage. First, marriage
always includes a series of agreements and compromises between the
two or more persons involved in a marriage projecting into the distant
future (contract). Second, marriage naturally gives rise to the
birth of children who must be nurtured by the parents (children).
Third, marriage may involve the most intimate joining of two persons
who have become one (commitment or covenant creating a status).
All three of these elements, contract, children and covenant, have
long been considered part of marriage in America. Historically,
the law was arranged to promote and protect these three aspects
of marriage.
A variety of
laws promote and protect these aspects of marriage. Children born
within a year of the death of a husband are legitimate heirs (children).
No person even has the ability to disprove this fact except the
mother. Children born within marriage are the children of the parties.
An outsider does not have the power to prove otherwise (covenant).
Spouses cannot testify against each other even if one of them wants
to do so (covenant). Adults must give consent to be married (contract).
A party to the marriage can terminate it in the state in which they
reside (covenant as status). Some or all of these three aspects
of marriage are generally intended in and created in every marriage.
Because the
present state model takes no account of covenant, externalizes the
value of children and asserts its own view of the contract, marriages
fail at exceedingly high rates.
To understand
why this is taking place we must examine how this happened.
For centuries
the Catholic Church was the arbiter of the dissolution of marriage
in Europe. Marriage was a life time commitment. At that time, all
three elements of marriage were specifically recognized legally
and therefore dissolution of marriage was limited to those instances
when a real covenant was not seen to have occurred at the moment
of consent, i.e. an annulment was given. When England broke with
the Catholic Church, the long established and considered rules created
by the Catholic Church were largely followed. These rules were essential
in such an age. Without stable rules surrounding marriage, the most
valuable things a parent could leave a child or spouse, real property,
would be destabilized. And, since the descent of such property was
largely based upon relationship to an heir, marriage was important.
Henry VIII could have sired a child in many ways. However, only
in marriage could he sire a legitimate heir with real property and
inheritance rights.
By the time
America freed itself from English rule, America did not control
the dissolution of marriage through a particular church. Practices
of marriage dissolution, such as those followed by the Puritan Church,
were giving way to civil solutions. In America marriage dissolution
was early on considered a matter of legislative power, i.e. a "bill
of divorce" was granted.
This public
route was deemed necessary in early America because marriage was
considered a public good and therefore its dissolution needed to
be for the common good. This idea, collectivist in nature, denied
to individuals their contract right and ignored the covenant many
had made. However, its purpose was clear – to protect other citizens
from having to care for children or a spouse unable to care for
themselves. As typically occurs, the creation of this "public good"
led to the sense that all incidents of marriage were completely
under state control – ignoring economics and natural rights. The
rights of any persons joined in marriage were deemed to be state
issues.
The consequences
of this state model are perfectly predictable. When racial discrimination
was a central part of politics, states prohibited persons of different
races from marrying. When the eugenics movement swept across America,
criminals and those deemed unfit were prevented from marrying or
were sterilized to prevent their "breeding."
Marriage’s
legacy in America has therefore been one of complete state control
of marriage and its incidents. Although Adam Smith's Wealth of
Nations was published just as the Revolution was beginning in
1776; the Austrian understanding of human action works made no impact
on this issue and still is absent today. Instead of human action
and choice, the heavy hand of legislation is the only tool used
to shape marriage.
The importance
of human choice has never been revisited in such a way as to reveal
the conflict of premises between individual choices and state mandated
ones. The fallacy that the state knows the good of two persons as
a "public good," and the popularity of utility theory, tools for
wealth transfer, were gaining acceptance.
By the middle
of the 1800's America had placed divorce in the hands of the courts
and approximately 100 years later in the 1960's, beginning in California
"no-fault" divorce swept through America. Both state court determinations
– based upon "fault" and "no-fault" – ignore the principles upon
which American government was founded; the right of the individual
to determine for themselves what forms and contracts best served
their needs.
Interestingly,
although divorce has gone through these different stages, marriage
– the allowance of it and what it means to people and who could
perform it – have been quite stable. Most people knew what was expected;
most honored the commitment because of the social and personal costs
of failing to do so. Common law marriage has been known since time
immemorial. In order to eliminate the need to "prove" that a marriage
had occurred, states increasingly disallow "common law marriage"
and require a license to be married. This is one of those innovations
made for the benefit of proof – nothing is considered a better piece
of evidence than a signed license registered by the state. Such
licenses are remarkably easy and inexpensive to obtain. Furthermore,
the actual marriage can be witnessed by a variety of persons including
priests and ministers. The "marriage" laws of most states encompass
a few short statutes setting forth age and relationship limitations.
These limitations go to the ability of the individual to make informed
choices before an agreed age and to cultural values common to nearly
all human cultures.
Today marriage
– the legal creation of the state of being married – through a license
is one of the easiest legal events of great significance.
The ease with
which marriage is contracted fails to make participants aware of
the weight and significance of the contract they are signing.
Dealing with
problems upon the dissolution of marriage or disputes that may arise
even within marriage can be incredibly complex. The more a marriage
actually encompasses contract, children and covenant, the more difficult
a dissolution is to manage. Because the raising of children is complex,
a vast array of laws and supervision is required when dissolution
of such marriages occur. Covenant and contract are also complex.
"No-fault" dealt with those complex realities by imposing a one
size legal norm – contract and covenant are of no legal importance.
It was the imposition of a Soviet Standard much like the USSR handled
the production of clothing in the 50s; one size, one color, and
it hardly fits anyone. But some profit from this apparatus – state
divorce courts have grown to prodigious levels, an array of social
workers, therapists and other "experts" are enriched by the divorce
bonanza ushered through state divorce gates. These courts and these
experts hold virtually every family in their jurisdiction in complete
control – their judgments can be disturbed only upon a showing of
an abuse of discretion. The inscription on those courthouses should
read like the inscription on the gates Dante places at the entrance
to Hell, "abandon all hope, ye that enter there."
In dissolution
proceedings no-fault generally takes account only of the financial
aspects of contracts. Labor, sacrifice, and the complete giving
necessary for marriage are deemed a gift to the marriage and cannot
be compensated. Yet, when, as is necessary, a woman relinquishes
a job in order to have children and care for them, the foregone
financial opportunity of the wife is not compensated for by the
husband who agreed to have children. The countless acts of self-sacrifice
necessary to a good marriage are deemed of no importance by the
law.
When one party
files for divorce that party cancels the covenant and any long term
agreements. The life the couple has lived is deemed essentially
"even" no matter how much fault is involved. Promises made and promises
broken are of no merit.
No-fault was
instituted in the 1960's on the promise of making a painful process
easier. The argument in favor of those laws was straightforward:
people are getting divorced; requiring people to prove fault or
to fight each other over the incidents of marriage was messy (besides
some people were making up "fault" in order to get divorced); simple,
clear rules will make it easy for those who want to get divorced
to get divorced; therefore we should have no-fault divorce. This
message resonated throughout legal America and led to a simplification
of divorce laws. However, this simplification failed to take into
account many facts about marriage and how divorce and marriage affect
society.
While jettisoning
the notion of fault, legislators ignored the underlying premises
on which marriage law rested. Instead of contract, children and
covenant, marriage was seen as a choice to be unchosen at any time
– no questioned asked. In so doing, no-fault ensured that the purposive
activity necessary for healthy marriages was valued as nothing.
Both natural law and Austrian economics can predict the outcome
of such laws.
Anytime individuals
engaged in ongoing relationships can retain their profits and sever
their liabilities, the motivation to do so is great. Human nature
being what it is; no-fault divorce provided a justification for
the least ethical to take and even secret assets and depart. Moreover,
its very structure encouraged even those who were ethical to be
less so by rewarding fault and bad faith.
No-fault divorce
has worked as promised for those who bring little into a marriage,
commit little in the marriage itself and have no children. In such
marriages – marriage as simple barter – the divide the goods in
half and send the adults on their way mentality serves the ends
sought by the proponents of no-fault divorce. Indeed, parties to
such marriages often consent to the dissolution in a short hearing,
sharing the minimal filing fees. This simplicity has allowed many
to treat marriage as a frivolous Las Vegas event that can be dissolved
when seen in the sobering light of main street USA; but in so doing
it has allowed us to confuse completely different types of marriages.
Vegas marriages hold little capital and so couples were never at
risk of loss during the marriage.
Yet, good stable
marriages and the raising of children require huge risk. Marriages
that involve children, contract and covenant are nevertheless treated
legally in the same manner as the Las Vegas marriage. Because the
law treats marriage as no-fault, but because people recognize that
marriage involves covenant, contract and may involve children, rational
people are discouraged from marrying. Other rational people who
enter marriage do not have children and do not take risks – thereby
ensuring that the marriage will never be capable of becoming what
it can become. Moreover, those who do not want covenant, contract
or children are actually encouraged to marry – no-fault says you
have a free way out. Given these three rational responses, divorce
rates have predictably risen.
When states
adopted no-fault dissolution laws, they failed to account for the
ability of the law to shape attitudes and actions. Nobody was prepared
for the tsunami of broken families swept into domestic courts or
the assets gobbled up by courts, attorneys and other forms of loss.
The legislatures came up with an idea and applied it to America's
families without even considering that those families deserved at
least as much consideration as a rare species of lizard. No one
thought of mandating an Family Environment Impact Report. Nobody
thought of even preserving a few families in Human Life parks or
Zoos where traditional marriages could be observed.
Theory was
applied directly to the lives of millions and the theory, unexamined
for the potential impact, ignored the reality of a marriage as a
vehicle for holding the capital investment of two individuals making
a shared investment unique to that couple. In fact, no contract
built on a collectivist model can work for any specific couple.
Virtually
nobody
predicted that countless marriages involving children
would dissolve.
Nobody predicted that numerous long time marriages that
appeared
happy to everyone and to one of the spouses would end in
dissolution.
Nobody predicted that nearly 50% of all marriages would
fail. No-fault created a devastating legal reality – marriage was no
longer
attached to contract, commitment or children. Instead,
marriage
was about autonomous fulfillment that could be judged by
either
spouse at any time in the marriage.
As marriage
continues to be shaped, society itself will be reshaped to deal
with the new situations created by these new realities. What the
"no-fault" proponents failed to recognize, the new marriage proponents
fail to recognize all the more – marriage is easy, the consequences
of marriage including its dissolution are not. Marriage as mandated
by the State today destroys the capital of trust, embeds deceit
and mangles lives.
Throughout
America, hundreds of thousands of cases are managed by divorce "judges"
and social workers who must monitor custody, visitation and support
of minor children. Putting that kind of power into the hands of
individuals who are all too human invited abuse and such abuse has
become endemic. The number of divorce and custody cases has reached
dizzying heights. Even the direct costs of this tsunami are staggering.
In Michigan,
a majority of all the active civil cases in state courts involve
marriage dissolution. Some statistics show that the direct cost
of divorce is $350 per family/year. But the present and future indirect
costs dwarf this figure: costs borne by parties for lawyers, lost
worker productivity, increased crime activity, increased mental
illness and a host of unknown consequences. The public – even those
who choose not to marry, and those who choose to marry with commitment
and children – bear these costs.
Antagonism
and distrust across gender lines and within families is also rising.
One of the costs of no-fault divorce is the very fabric of family
trust and continuity.
It need not
be so. Nothing prevents the state from loosening its control over
marriage and a movement for reform in the direction of individual
rights and intermediate institutions is both needed and developing.
One of the
most important and beneficial ways marriage reform can occur is
to allow individuals to choose their own private marriage contract
– along with the means, outside of the State, to mediate and enforce
that contract.
One such movement
could take place within Catholic and Jewish churches. Both of these
institutions have established courts and procedures to deal with
marriage issues. The TrueMarriage project is currently encouraging
Catholics and others to establish clear agreements and procedures
to adjudicate marriage issues.
Because the
variety of commitments often involve concepts specific to certain
faith communities, the state must allow alternative dispute mechanisms
in those communities. This is a natural role for churches, which
have always been a source of stability in the lives of individuals.
These organizations would judge the marriage that the party entered.
Thus, those who want a Baptist marriage could agree to be bound
by the standards of a chosen Baptist denomination. Catholics, Evangelicals,
Jews, and other religious groups could do the same. Moreover, a
variety of private institutions could develop forms and standards
to satisfy the needs of other people. And, those who like the state
system could continue to choose nothing at all, though I suspect
those so choosing would be few. Such freedom would ensure that the
state is not imposing its Vegas concept of "marriage" on those who
marry. Instead, the parties to the marriage, like all who enter
significant contractual relationships, could create a contextualized
process resolving disputes that arise in the relationship.
Perhaps the
most difficult issue in the development of such institutions is
cost. Each organization would have to develop a pricing mechanism
for those entering marriage in order to "insure" for marital disputes.
The actual costs of dissolution and costs of monitoring a divorce
or separation with children would be difficult to fully calculate.
But it could be done. Each organization would need to determine
for itself how the cost of covenant breaking would be imposed and
upon whom it would be imposed in the dissolution proceeding. To
some degree, it would become clear over time which form of marriage
was less expensive. However, one significant public problem remains
in the marriage debate – children?
Currently,
every family in America pays the cost associated with children of
divorce. Not only do married and single citizens pay for the court
system, they pay for the long term social costs of the dissolution.
It is impossible to calculate the cost of divorce on children –
to monetize it. How does one measure the effects of divorce on children
over their lifetimes and the lifetime of their children? An accurate
calculation could take generations.
Yet, this calculation
was previously done. Previous generations – for generations and
generations – thought that the costs of divorce were generally too
great for society to bear. Thus, those who entered into marriage
could not remove themselves from it, or could only do so in circumstances
that were rare. This was the calculation done on the real costs
of marriage, the costs discounted by the move to no-fault divorce.
Certainly, faith communities and those willing to commit to main
street marriage should not have their purposive activity ignored.
Even though
the specter of "no-fault" hangs over all marriages, most Americans
still believe in and want enduring marriages. Knowing that a marriage
may be more difficult to destroy, and knowing that one's actions
– virtuous actions oriented to achieving a lasting commitment and
vicious action oriented toward breaking a commitment – have real
consequences will only lead to more enduring marriage. Rewarding
good conduct will encourage more of it as honorable behavior encourages
trust and the investment of further relationship capital into the
future.
When our investment
in marriage is easily destroyed, it is natural that we reconsider
whether or not marriage is purposive today. As issued by the State
it is not; it is an agreement whose dissolution transfers wealth
into the hands of those who have grown like barnacles on the whole
system. We created these encrusted constituencies because we failed
to use the principles of natural rights and the insights gained
from an informed understanding of how markets impact human choice.
Strong marriages,
even more than well run prosperous businesses, provide the capital
for a more stable and prosperous future for all of us. Through our
choices, given the freedom to choose, we can ensure that the stable
family life that so many want is within their reach.
No excuse exists
for allowing a state structure of divorce – worthy of the former
Soviet bloc – to limit what is arguably the most purposive human
activity.
