Covenant marriage: an achievable legal response to the inherent nature of marriage and its various goods.

AuthorSpaht, Katherine Shaw
PositionSpecial Issue: The Nature of Marriage and Its Various Aspects

INTRODUCTION

The Code of Canon Law describes marriage as a covenant: "The marriage covenant, by which a man and a woman establish between themselves a partnership of their whole life, and which of its own very nature is ordered to the well-being of the spouses and to the procreation and upbringing of children, has, between the baptised, been raised by Christ the Lord to the dignity of a sacrament." (1)

~Alfonso Cardinal Lopez Trujillo

As canon law so aptly distinguishes, the concept of marriage as a covenant differs from marriage as a sacrament. Marriage is a covenant through which a man and a woman create a partnership for "their whole life" with the purpose of providing for the welfare of the couple and the conception and rearing of children. (2) This covenant entered into by the baptized has "been raised by Christ the Lord to the dignity of a sacrament." (3) For Catholics, marriage is not simply a covenant, but by Christ's act, it is also a sacrament, "the intimate mystery of God, manifested across the centuries." (4) The covenant represents the agreement between husband and wife, an exchange of promises, with God as a party, to join together for life for two fundamental purposes: (1) mutual love and support and (2) procreating and rearing the next generation. (5) Marriage, which the covenant creates, is a natural, social institution, universally recognized across generations and cultures, and is, "a response to God's design and the inherent necessity in the nature of man and woman, invited by God himself, to form a very special unity, 'one flesh.'" (6)

Legally, by contrast, marriage in the United States during the last fifty years has been understood as a private contract, "grounded in new cultural and constitutional norms of sexual liberty and privacy." (7)Marriage formation rules were simplified with virtually no requirements for waiting periods, publication of banns, or requisite public celebration. Dissolution rules were simplified by the introduction of unilateral no-fault divorce accompanied by streamlined procedures for divorce that significantly hastened dissolution of marriages. A divorce can now be obtained upon the simple petition of either party, which is touted as means to the end of a "clean break" from the other spouse. And, as at least one observer commented: "America's experiment with the private contractual model of marriage has failed on many counts and accounts--with children and women bearing the primary costs." (8)

As a legal response to the social costs levied by the streamlined divorce system, three states have adopted covenant-marriage statutes that offer couples an optional--and I argue preferable--form of marriage. Covenant marriage imposes obligations upon husband and wife to prepare for marriage and to take "reasonable steps" to preserve their marriage if difficulties arise. Divorce, in the covenant marriage context, generally requires proof of serious fault on the part of one spouse or a lengthy waiting period of living separate and apart. The statutes adopted by Louisiana, (9)Arizona, (10) and Arkansas (11) share three principal characteristics: (1) mandatory premarital counseling by a religious cleric or professional marriage counselor about the seriousness of marriage; (2) the execution of a Declaration of Intent (the covenant or agreement containing their promises (12))--a legal obligation to take reasonable steps to preserve the marriage if marital difficulties arise (in at least one state, this obligation explicitly lasts until divorce (13)); and (3) limited grounds for divorce, consisting of serious fault on the part of one spouse or, in the absence of such fault, a significant period of time living separate and apart. (14) In Louisiana, the legislation governing a covenant marriage also includes special obligations imposed upon a covenant couple during their covenant marriage that are not imposed upon other married couples. These obligations include: (1) to love and respect each other; (2) to live together; (3) to make decisions relating to family life in the best interest of the family; (4) to maintain and teach their children "in accordance with their capacities, natural inclinations, and aspirations"; and (5) the right and duty of each spouse to manage the household. (15)

Part II of this essay summarizes the major aspects of marriage and its goods, with emphasis on its indissolubility, as explained in Cardinal Trujillo's article in this symposium. Part III examines some of the obstacles to restoring an indissoluble form of marriage, consisting principally of legal elites who possess an alternative vision of marriage and family law bar members who are quite content with easy, uncomplicated divorce rules. Part IV explores the extent to which a covenant marriage conforms to God's marriage design. Part V offers two practical suggestions for increasing the number of covenant couples in affected states: (1) removing obstacles of implementation constructed by the staff members of bureaucracies who were originally intended to facilitate effective choice of a marriage model by citizens; and (2) soliciting and demanding official encouragement--if not requirement--of choosing covenant marriage by Christian denominations, in recognition that covenant marriage more nearly accomplishes God's intended purpose for marriage. Yet, adoption of covenant marriage statutes in the other forty-seven states remains the ultimate goal, a goal which would permit all United States citizens to take advantage of this more committed form of marriage.

  1. MAJOR ASPECTS OF MARRIAGE AS THE FOUNDATION OF THE FAMILY

    Marriage, as a natural institution, reflects the mutual gift of a man and a woman and forms the foundation of the family, "a divine institution." (16) These observations are, as Cardinal Trujillo opines, "natural realities." (17) Marriage and the family it founds are natural because "they hold and reveal the truth coming from the beginning." (18) As evidence of its natural character, all civilizations have recognized the truth revealed in marriage and family, "enlightening them from within and, at the same time, transcending them." (19) Yet, marriage as a sacrament goes further and "inundates the whole of its value with a new brilliance and depth and with a more demanding commitment." (20)

    The relationship between nature and culture, and more particularly between nature and the law, Pope John Paul II explained, means that "family cannot disregard the cultural vehicle in which it has to express itself: 'Man comes to a true and full humanity only through culture, that is through the cultivation of the goods and values of nature.'" (21) Cardinal Trujillo furtherstates:

    This correlation between nature and culture has a direct influence on the understanding of both natural and positive law as elements that are necessarily present in every legal system or order. Two orders do not exist, one natural and one positive, but a single legal system in which the demands of justice 'coming from' the family (nature) are integrated with the necessary historical determinations derived from positive law (culture). (22) Marriage, which gives birth to the family, "lights the path for us and introduces us to the legal nature of the family...."

    Marriage, as a mutual gift of one's innermost self, is evidenced by the total physical self-giving of man and woman and is characterized by "the value of a total surrender--the resultant faithfulness and stability last forever." (24) The mutual gift of oneself to one's spouse "pervades the whole of their lives" and by virtue of "its busy generosity it grows better and grows greater"; "this love remains steadfastly true in body and in mind, in bright days or dark. It will never be profaned by adultery or divorce." (25) Christian marriage "invigorates and reinforces the foundational properties of natural marriage, unity and indissolubility, consequently imposing duties on the spouses with more force than in the natural institution." (26)

    Ultimately, it is from the logic of total giving, the essence of marriage, that "the indissolubility of the conjugal bond must be seen more deeply. Marriage, like conjugal love, is a commitment that lasts a lifetime." (27) Marriage, which by its nature is a total self-giving, cannot be provisional or temporary: "Giving oneself with the reservation of being able to disconnect oneself would mean an incomplete gift, contrary to that which gives rise to marriage." (28) The community of marriage, unlike every other relationship no matter how intense, is a communion (29) for life, a community "always ... exclusive to those participating in the reciprocal gift of masculinity and femininity." (30) Thus, any description of marriage should include a "'community for a lifetime.'" (31) To be certain, "this understanding of marriage does not permit marriage to be viewed as a simple contract[,] ... [or] rescindable at the free and arbitrary will of the contracting parties and the complacent acceptance of legislators, seduced by legal positivism." (32)

    Prophetically, Cardinal Trujillo opines that certain "legal systems and much contemporary legislation departed from the Western legal tradition on the family from the moment they conceded the right to divorce." (33)

    The right to divorce now enjoys the same value in many countries that the recognition of the right to marriage enjoys. Husband and wife are no longer seen in these countries as a parental unit, since their identities--that of husband and wife--are not defined with any reference to modes of being or personal identities and are limited to reflecting social functions created by the positive legal order. In marriage as well as in its dissolution, it is the state which respectively attributes or eliminates the legitimate use of those functions on the part of the citizens. (34) From the perspective of legal positivism, "legal knowledge must do without any value judgment with respect to...

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