Jules F. & Frances L. Landry Professor of Law, Paul M. Hebert Law Center. I owe a deep debt of gratitude to my colleague, John Randall Trahan, who helped locate all of the world's Civil Code references for the provisions of La. Acts 2004, No. 490. Well done, mon fils.
My dear friend, Professor Mary Ann Glendon, Learned Hand Professor of Law, Harvard Law School sent me the following prayer by Oscar Romero and it expresses so accurately my own convictions about covenant marriage:
This is what we are about. We plant the seeds that one day will grow. We water seeds already planted, knowing that they hold future promise. We lay foundations that will need further development. We provide yeast that produces effects far beyond our capabilities.
We cannot do everything and there is a sense of liberation in realizing that. This enables us to do something and to do it very well. It may be incomplete, but it is a beginning, a step along the way, An opportunity for God's grace to enter and do the rest.
We may never see the end results, but that is the difference between the master builder and the worker. We are workers, not master builders, ministers, not messiahs. We are prophets of a future not our own.
Almost seven years have passed since the first covenant marriage legislation was enacted in Louisiana,1 followed by the enactment of similar legislation in Arizona in 19982 and Arkansas in 2001.3 During the intervening years between its enactment in Louisiana and the present, covenant marriage legislation has been introduced in approximately thirty other states but the bills containing the legislation have failed to pass. Remarkably, the failure of covenant marriage bills to pass has occurred even though the legislation simply offers a couple an alternative to the prevailing legal regime of "no-fault divorce" marriage.
During the same time period, Steve Nock, a sociologist at the University of Virginia, and his research colleagues have studied the proposition, "Can Louisiana's Covenant Marriage Law SolvePage 606 America's Divorce Problem?" The wealth of information mined from that on-going study offers a glimpse of the effect of cultural changes on the understanding of marriage, as well as the self-selection effects of this experiment4 and the sanctification of marriage created by the choice of a more committed form of marriage.5 By virtue of the same study, results from a Gallup poll conducted in 1998 also revealed the attitudes of a random sample of citizens towards covenant marriage legislation in Louisiana, Arizona, and Minnesota.6 Thereafter, the research team received another grant to consider the implementation of a change in policy through the use of state civil servants; in the case of covenant marriage, the state civil servants would consist of the staff of the local Clerk of Court's office. But the bulk of information gathered by the research team concerns the couples themselves-300 covenant couples, 300 standard couples.
With the decision of the United States Supreme Court in Lawrence v. Texas7 followed by the Massachusetts case of Goodridge v. Department of Public Health,8 the air and the vigor has been "sucked out" of the nascent national discussion of marriage. Rather than the broader polity discussing the far more pervasive problems of harm done by divorce, the rescue of at-risk marriages by marriage education, and the promotion of "healthy" marriages by the federal government, national attention is currently focused almost entirely on same-sex sexual expression. Same-sex couples marrying in Massachusetts and a proposed amendment to the United States Constitution defining marriage as a union of one man and one woman9 have literally consumed all of the media attention.Page 607
Of course the issue of same-sex "marriage," or even the access of same-sex couples to civil unions, is a critical one, with the discussion and results having far reaching consequences for marriage.10 It may well determine how quickly the United States may resemble "post-marriage" Scandinavia, which has recognized the equivalent of same-sex "marriage" for ten years. What has happened in Scandinavia? "Same-sex marriage has locked in and reinforced an existing Scandinavian trend toward the separation of marriage and parenthood."11 According to Stanley Kurtz of the Hoover Institution:
Marriage is slowly dying in Scandinavia. A majority of children in Sweden and Norway are born out of wedlock. Sixty percent of first-born children in Denmark have unmarried parents. Not coincidentally, these countries have had something close to full gay marriage for a decade or more.12
Kurtz examined an unpublished study of the registered same-sex partnerships in Denmark, conducted by Darren Spedale, often cited in the writings of gay-rights advocates William Eskridge, Jr. (lawPage 608 professor) and Andrew Sullivan (journalist). Kurtz takes issue with the "half-page statistical analysis of heterosexual marriage . . . [because it] doesn't begin to get at the truth about the decline of marriage in Scandinavia during the nineties."13 Kurtz argues that the important rates to evaluate are not lower divorce rates and higher marriage rates in Scandinavia in the nineties, but the out-of-wedlock birth rates and family dissolution rates (non-married cohabitants).14
His evaluation has provoked a rejoinder, not surprisingly, in a "discussion paper" prepared by M.V. Lee Badgett for the Institute for Gay and Lesbian Strategic Studies at the University of Massachusetts Amherst and the Council on Contemporary Families, which promotes alternative family forms.15 The paper examines some of the same data as both Spedale and Kurtz, comparing it to data from equivalent countries not legally recognizing same-sex unions and essentially accusing Kurtz of the "consistent misuse and misinterpretation of data."16 Yet, Kurtz relied heavily for his interpretation of the data on Kathleen Kiernan, "the acknowledged authority on the spread of cohabitation and out-of-wedlock births across Europe . . . ."17 She divides Europe into three zones, describing the Nordic countries as leading in cohabitation, out-of-wedlock births, and, of course, gay "marriage."18 The rejoinder has provoked its own response in which Kurtz replies: "The bottom line is neither Badgett nor anyone else has been able to get around the fact that marriage in both Scandinavia and the Netherlands is in deep decline."19
Not yet provocative of a response, a Policy Brief published by the Institute of Marriage and Public Policy (iMAPP), prepared by director Maggie Gallagher and Joshua K. Baker, entitled Same-Sex Unions and Divorce Risk: Data from Sweden, simply addresses the raw data compiled in a recently released report:Page 609
A recent study offers the first systematic review of same-sex unions and divorce rates based on accurate national register data in Sweden from the 1990's.
The study found that gay male couples were 1.5 times as likely (or 50 percent more likely) to divorce as married opposite-sex couples [1,526 same-sex partnerships were contracted between 1995 and 2002, compared with 280,000 Swedish opposite-sex marriages over the same period and unlike most other places, 62 percent of the same-sex couples were male], while lesbian couples were 2.67 times as likely (167 percent more likely) to divorce as opposite-sex married couples over a similar period of time. Even after controlling for demographic characteristics associated with increased risk of divorce, male same-sex couples were 1.35 times as likely (35 percent more likely) to divorce, and lesbian couples were three times as likely (200 percent more likely) to divorce as opposite-sex married couples.20 The story is essentially the same in the Netherlands, one of only two European countries to recognize same-sex marriage.21 The following report concentrates on the number of gay couples opting for this historic opportunity to "marry" and what effect the campaign for same-sex "marriage" had on the broader public's attitude toward marriage.
Since April 2001, each quarter has brought a further decline in the number of gay marriages, falling from 2,500 in 2001 to less than 1,500 last year. As of April 2004, only 5,916 of Holland's roughly 55,000 gay couples had tied the knot. The floodgates had been forced open by gay-marriage activists, but through them came just a trickle of mainly lesbian couples (lesbians make up only 20 percent of the homosexual community in the Netherlands, but they now make up more than half of all married homosexual couples.)
It seems that so far 90 percent of Dutch homosexual couples have declined the historic opportunity to get married.
. . . Gay organizations' own figures, which put the size of the gay community in Holland at around 1.5 million (almost 10Page 610 percent of the total Dutch population of 16 million), seems a wild exaggeration. But if accurate, these figures would give the impression that with only a little bit more than one-third of 1 percent of Dutch gays and lesbians actually married, interest in marriage among homosexuals is virtually nonexistent.
A government-sponsored study on sexuality in the Netherlands among people ages 18 and older came up with a more realistic figure of 350,000 gays and lesbians. Even on this cautious estimate, however, married gays and...