Judging marriage: an experiment in morals and conduct.

• Author: Corrigan, Maura D.
• Position: Special Issue: The Nature of Marriage and Its Various Aspects

INTRODUCTION: A LITTLE HISTORY

On April 23, 2004, I spoke at the Ave Maria Law Review's annual banquet. For three years before that event, my administrative duties as Chief Justice of the Michigan Supreme Court required that I study child-centered policy issues, including foster care, adoption, and child-support enforcement. While pursuing this study, I was shocked by what I learned about the decline of marriage and the resulting harm to children. I concluded that those two closely connected pathologies reside at the core of our society's most critical social and fiscal problems. So when I spoke to the banquet guests, I said:

It is in this light that I now am asking the Ave Maria School of Law, and particularly the scholars gathered in this room, to take on the most vexing social issue of our time: the disintegration of marriage and its disastrous effect on our children. (1) The Ave Maria Law Review, faculty, and its advisors immediately accepted my challenge and began planning this symposium devoted exclusively to the law of marriage. And, as if to prove that one should be careful what she wishes for, they asked me to contribute an article. I was honored by that request, as I had been by their invitation to speak at the banquet. Although I confess to feeling a bit intimidated by the scholarly credentials of the other invited contributors, I hope that I can add something useful to this discussion of the law and marriage.

The editors of the Law Review asked that each of us: (1) write from the perspective of our "field of study"; (2) comment on The Nature of Marriage and Its Various Aspects, the article by Alfonso Cardinal Lopez Trujillo; (2) (3) identify particular "obstacles" to implementing Cardinal Trujillo's natural law vision of marriage; and (4) offer "practical suggestions" for overcoming those obstacles.

I will comment from the perspective of a judge who sees, almost daily, the collateral damage to children caused by their parents' decisions to divorce, or never to marry at all.

In his encyclical letter, Fides et Ratio (Faith and Reason), Pope John Paul II wrote that faith and reason are fully compatible and that people ought to employ both faith and reason. (3) Cardinal Trujillo does exactly that in his essay. But no matter how eloquently Cardinal Trujillo writes, he can persuade only those willing to read him and then willing to employ both faith and reason. I acknowledge that the world too often shows a lack of faith. It also needs desperately to embrace reason. The great chasm between Cardinal Trujillo and many who ought to read his essay (but probably will not) is the Cardinal's willingness--even eagerness--to study the world as it naturally is.

Over the last thirty-five years, marriage as a social institution in the United States has been weakened by powerful forces: cultural, legal, and economic. Some of those destructive forces arose almost inevitably out of unrelated events, but others were unleashed intentionally by people who viewed themselves as social or legal reformers. With hindsight, we can see that the deconstruction and disestablishment of marriage have done great damage to our society and especially to our children. Judges see that every day in their courtrooms and their chambers.

The "reformers" did not set out to harm children or society. To the contrary, they had great faith that the changes they advocated would be beneficial. And they offered reasoned supporting arguments. But time and experience have shown that their faith was misplaced and their reasoning flawed.

In my 2004 remarks at the Ave Maria Law Review banquet, I offered the following observations about the social and legal changes I have witnessed since about 1970:

All states have enacted no-fault divorce laws, which permit a spouse to end a marriage and break up a family for no better ground than the wish to be free. This "reform" was part of a preoccupation with freedom of choice and personal privacy. These rights were being extolled in books, law review articles, and even court decisions. At the same time, a new wave of advocates was migrating to the academic community. They saw family law as a vehicle for demanding equality in matters of gender and lifestyle. They argued that the concepts of "marriage" and "family" should be revised to encompass all forms of domestic association. While most, if not all, Americans revere freedom and equality in the abstract, the revolution in domestic relations has placed our children and our future very much at risk. In one generation, the United States has moved from a culture of marriage to a culture of divorce, cohabitation, and one-night stands. The once-exalted institution of marriage has been reduced to a social option. Look at the record. We all know that currently more than half of U.S. marriages end in divorce. But some of you may not know about the alarming consequences for children. (4) I. WHAT ABOUT THE CHILDREN?

To illustrate for the banquet audience those "consequences for children," I then summarized some truly frightening data (updated slightly here). In 1960, only 5.3% of all live births in the United States occurred outside marriage. (5) By 1970, that number had doubled to 10.7%. (6) The most recent available data show that in 2003 fully 34.6% of our new babies were born to unmarried parents. (7) The only arguable silver lining in that dark cloud of data is that the rate of increase in unmarried births has slowed over the last ten years. But the increase still continues. That is bad news for children and custodial parents because children born to married parents and raised by both parents in one home are, on average, far better off than children born and raised in any other combination of circumstances. (8) Additionally, statistics bear out that:

* "[T]he majority of children who grow up outside of married families have experienced at least one year of dire poverty." (9)

* U. S. Census Bureau data for all single-parent households show that, in 2002, families with a female head-of-household and no husband present accounted for half of all American families living in poverty. (10)

* More than 31% of custodial parents have never been married. (11)

* More than 27% of all children live apart from one of their parents. (12)

* An estimated 13.4 million parents have custody of 21.5 million children whose other parent lives elsewhere. (13)

* The poverty rate for custodial-parent families is four times greater than the rate for intact married families with children. (14)

The trends in my state, Michigan, essentially mirror the national data. Although Michigan's population increased by 12% from 1970 to 2003, (15) the state of Michigan issued 27% fewer marriage licenses in 2000 than in 1970. (16) Meanwhile, despite fewer marriages (i.e., fewer potential divorces in the state), divorces actually increased by 30%. (17) Over the same period, births to unmarried Michigan women jumped by a shocking 343%; (18) the number of poverty-stricken Michigan households headed by unmarried females rose by 60%; (19) and the 2000 census found that 340,254 minors in Michigan were living in poverty. (20)

Thus, during the last three decades, the decline of marriage has caused a huge jump in impoverished unmarried-parent households and a concomitant plunge in the well-being of the children trapped inside the destructive cycle of poverty.

If absent parents and the resulting poverty told the entire story, that story would be troubling enough. But it gets worse. Splintered families and poverty also usually portend serious social, educational, and emotional injuries to the children raised in those circumstances. (21) Our children are our most precious national resource. Clearly, we are witnessing the dissipation of that resource and tremendous consequential damage to our society. (22) Something must be done, and there is no mystery about what that "something" is. We must do everything possible to assure that more children grow up in homes with their married parents.

2. IMPLEMENTING THE NATURAL LAW VISION OF MARRIAGE

   Mark Twain (1835-1910) was an American author, humorist, and folk philosopher who sometimes challenged the fundamental tenets of Christianity. Whatever one thinks of Twain's stance toward Christianity, there can be no denying his rhetorical brilliance. In Letters from the Earth, he used his ironic wit to capture the essence of humanity's internal conflict regarding obedience to natural law:

   [Enter a Messenger-Angel.]

   "My lords, He is making animals. Will it please you to come and see?"

   They went, they saw, and were perplexed. Deeply perplexed--and the Creator noticed it, and said, "Ask. I will answer."

   "Divine One," said Satan, making obeisance, "what are they for?"

   "They are an experiment in Morals and Conduct. Observe them, and be instructed."

   ....

   After a long time and many questions, Satan said, "The spider kills the fly, and eats it; the bird kills the spider and eats it; the wildcat kills the goose; the--well, they all kill each other. It is murder all along the line. Here are countless multitudes of creatures, and they all kill, kill, kill, they are all murderers. And they are not to blame, Divine One?"

   "They are not to blame. It is the law of their nature. And always the law of nature is the Law of God. Now--observe--behold! A new creature--and the masterpiece--Man!"

   Men, women, children, they came swarming in flocks, in droves, in millions.

   "What shall you do with them, Divine One?"

   "Put into each individual, in differing shades and degrees, all the various Moral Qualities, in mass, that have been distributed, a single distinguishing characteristic at a time, among the non-speaking animal world--courage, cowardice, ferocity, gentleness, fairness, justice, cunning, treachery, magnanimity, cruelty, malice, malignity, lust, mercy, pity, purity, selfishness, sweetness, honor, love, hate, baseness, nobility, loyalty, falsity, veracity, untruthfulness--each human being...