The Last One Hundred Years: The Incredible Retreat of Law from the Regulation of Marriage

• Author: Katherine Shaw Spaht
• Position: Jules F. and Frances L. Landry Professor of Law, LSU Law Center
• Pages: 243-308

Page 243

Jules F. and Frances L. Landry Professor of Law, LSU Law Center. This article is dedicated to my colleague W. Lee Hargrave who died on November 15, 2002. (See Appendix.)

I Introduction

Over the last one hundred years the law has retreated¹ from a confidently moral view of marriage.² This retreat of the law includes areas such as entry into marriage, the content of marriage, and the grounds for its termination. As a consequence, the retreat has permitted the parties themselves to choose to enter the relationship of marriage without the information that used to be required, to define 3 in other words, even without the legal protection given to simple contracts.⁴ Thus, it is both precise and accurate to refer to current no-fault divorce law as "unilateral repudiation."

Although this article traces only the relevant history of the retreat of Louisiana law in its regulation of marriage, the Louisiana experience illustrates what has happened throughout the United States.⁵ Not surprisingly, people in Western countries have concluded that marriage is a private relationship which the law has no right to regulate and whose consequences affect only the parties to the marriage, not the general public, not even their own children. The singular and most crucial purpose of marriage as the incubator of future civilization has been replaced in Americans' cultural imagination by a very different purpose. No longer does the general public intuit that the married couple is the instrumentality charged with civilization's most burdensome, time-consuming but indispensable task, the acculturation of children.⁶ The new purpose 7The state of current law supports and reinforces such a perception.

The effect of law on culture and culture on law continues to be a matter of extensive scholarly debate.⁸

Law and culture stand in a complex dialectical relationship. Neither comes first; neither comes last. Law contributes massively to the formation of culture; culture influences and shapes the law. Inescapably, inevitably, law and culture stand in a mutually informing, formative, and reinforcing relationship. For this reason and many others, the liberal ideal of governmental "neutrality" on contested cultural- moral issues, allegedly leaving everyone "free" to pursue their own private visions of the good and thus attain personal fulfillment, is an illusion. It amounts either to non-sense, or it masks an ideology of social engineering.⁹

In this article, the precise issue concerns not whether the enactment of law can change a nation's culture, such as the 1960s civil rights legislation has done,¹⁰ but whether the repeal of laws can 11 and which protected that relationship once formed¹² change the inherent nature of the institution? Law does represent the formal expression of society's collective interest. As Francis Cardinal George expresses it: ". . . law is the primary carrier of culture in this pluralistic society; law is the forger of our national identity and of our collective sense of right and wrong."¹³ When it withdraws by repealing legislation which previously expressed its fundamental concern for marriage, does that withdrawal communicate the abdication of the public's interest in marriage? Does that withdrawal convey to citizens that marriage is indeed a purely private matter¹⁴ and no longer an institution of significant public concern deserving of privilege and protection? This article examines those questions and reaches the conclusion, not

II

A Legal Regulation of Entry into Marriage, Historically

1. The Promise of Marriage

Louisiana has always recognized that the promise of marriage, the engagement, is a contract and subject to the ordinary remedies provided for breach of contract.^{15 16} The promise of marriage assumes an exchange of promises by the prospective bride and the prospective groom.¹⁷ Article 1934 (1870) recognized that breach of a contract of marriage would result in damages rather than specific performance¹⁸ 19 that would permit the recovery of non- pecuniary damages, the Civil Code enumerated "a promise of marriage . . . " among its other examples.²⁰ The action, however, was considered to be legally personal and not heritable by virtue of its very intimate nature.²¹ Consistent with Civil Code principles, the jurisprudence permitted the recovery of damages "which result from injury to feelings and reputation as well as material damages . . . ."²² However, the promisee of a promise of marriage could not retain the engagement ring as a form of liquidated damages since the Civil Code expressly recognized the scenario as an example of a failure of cause: "Every donation made in favor of marriage falls, if the marriage does not take place."²³ Notice that the gift contemplated is one made "in favor of marriage," the relationship or institution, the cause²⁴ being the marriage rather than the donee.

The same jurisprudence, however, recognized the application of other not so obvious contract principles whenever considering a claim for breach of a promise to marry. For example, if the plaintiff could prove "seduction" by the defendant, the amount of damages 25Presumably, such a result occurred because the judge exercised wide discretion in granting damages for non-pecuniary loss just as he did in delictual cases.²⁶ Furthermore, "unchastity of the plaintiff" always constituted a defense to the action, but even a showing of her general bad reputation "could constitute sufficient cause to deny recovery."²⁷

The underlying assumption made by this jurisprudence which justified aggravating the measure of damages if the plaintiff was seduced and denying her recovery if she was unchaste reflected the historical "double standard"-a man desired to marry only a chaste woman. There was no suggestion in the jurisprudence that the unchastity of the groom was at all relevant. Thus, a woman who was seduced by her fianc was no longer a desirable commodity in the "marriage market," and by virtue of that lost value, she suffered long- term damage beyond what was usual for breach of the promise of marriage. Using the same assumption, the man who broke his engagement because he discovered that his fianc was unchaste had been in error at the time of the contract and that error bore upon the "principal" cause of the contract without which he would not have promised to marry her.²⁸ Even if the bride did not know her chastity was the principal cause of his promise to marry, the law nonetheless presumed she knew.²⁹

The jurisprudence confidently applied contractual principles to breach of the promise to marry and did so consistently with traditional moral understanding. Marriage served the purpose of channeling sexual expression between a man and a woman into a desirable institution that could provide a stable environment for any resulting children. The female was the guardian of societal moral standards, no doubt for the very practical reason that she would bear the consequence of any failure of self-control. The "double standard" which distinguished between the acceptability of sexual experience for a man and such experience for a woman was simply recognition of her unique position as the bearer of offspring and her risk of graver consequences should she fail to exercise sexual self-control. Such jurisprudence seems at this juncture of history quite antiquated, downright naive and Victorian. After all women have been liberated from the consequences of lack of sexual self-control; dependable and effective birth control and the availability of abortion have meant that women are free to express themselves sexually in the same ways as men. The cases recognizing the aggravating factor of "seduction" and the legal defense of a female plaintiff's lack of chastity seem decidedly unsophisticated. As John Witte, Jr. observes in From Sacrament to Contract, "[s]exual pathos was prominent at the opening of the second millennium with widespread concubinage [cohabitation], prostitution, voyeurism, polygamy, adultery, fornication, sodomy, wife and child abuse, teenage pregnancy, abortion, and much else. Sexual pathos has returned with equal pungency at the close of this second millennium."³⁰ Although there continue to be actions instituted for breach of a promise of marriage,³¹ no one would expect reliance today upon this jurisprudence which imposed sexual moral standards that do not treat men and women equally.

2. Prerequisites to a Valid Marriage: Who Can Marry and How

Although the Louisiana Civil Code at the turn of the century described marriage in the law as "a civil contract,"³² marriage was never subject to the rules governing ordinary contracts.³³ Marriage 34 it was a relation, an institution "in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society."³⁵Referring to marriage as a "civil contract" can be explained by the fact...