Contracting out of the culture wars: how the law should enforce and communities of faith should encourage more enduring marital commitments.

• Author: Aycock, Jamie Alan

INTRODUCTION I. BACKGROUND A. Changing Conceptions of Morality and the Proper Role of Law B. Attempts to Fix Marriage 1. Legal Efforts to Strengthen Marriage 2. Non-legal Efforts to Strengthen Marriage C. Using Contract to Strengthen Marriage II. INVOLVING COMMUNITIES OF FAITH IN EXTENDING CONTRACT IN MARRIAGE III. LIMITING DIVORCE THROUGH RESTRICTED GROUNDS AND ADDED CONSEQUENCES A. Precommitment as Rational for Individuals and Communities of Faith B. Why Communities of Faith Should Encourage Precommitments C. Overcoming Challenges to Allowing a More Restrictive Marriage Regime 1. Philosophical Challenges 2. Negative Effects 3. Constitutionality Under the Establishment and Free Exercise Clauses 4. Public Policy and Contract Law IV. CONCLUSION INTRODUCTION

The culture wars that have been raging since at least the 1960s show no signs of cooling off. In fact, commentary on the red state, blue state dichotomy seems only to have heated up in recent years. Although the underlying issues of the culture wars are at play in many areas of the law (as seen in the politicization of judicial confirmations), the most intense battleground may be the area of family law because the heart of the ongoing fight is over competing visions of the family. Many writers have enlisted with one side or another, staked out a particular position, and attempted to articulate a compelling vision for America. But because each battle is seen as a zero-sum game, few authors have attempted to develop practical solutions that bridge the divergent perspectives on the family. Since no side appears anywhere close to "winning," it is imperative to develop family law solutions that bridge some of the differences.

This Article proposes that the law should enable individuals to make choices that further their particular vision of the family, without imposing that vision upon the whole of society, thus allowing pluralism in marriage law. One set of culture-warriors argues that the requirements for entering marriage should be heightened and that the duties and rights in marriage should be increased to achieve greater stability in what they consider the fundamental social institution. Another set of culture-warriors argues that individuals should be allowed to easily enter and exit marriage and that society should be especially concerned with the ongoing effects of patriarchal roles associated with this historically unjust social institution. This Article takes an approach that cuts across the divide by arguing, as others have, (1) that the role of contract in marriage should be extended for those who choose to agree to additional terms. In a sense, this approach transcends the culture wars by drawing on liberal values, such as individualism and neutrality, to allow individuals to emphasize more traditional or communitarian values, such as interdependence and attachment, if they so choose. This Article takes the argument a step further by recommending that communities of faith play an active, positive role in a marriage regime of expanded contract. Specifically, communities of faith should not only be allowed but should also be encouraged to define the types of commitments they wish to bless as marriage.

This Article first outlines some of the background for understanding changes in marriage and divorce in America, including changes in views on what marriage is and should be, as well as developments in society's conception of morality and law. After laying out the shifts that have taken place in the last half-century, the Article presents some of the major legal and nonlegal attempts that have been made to fix marriage. Then, the Article provides a brief overview of what others have written on how expanding the role of contract might be used to strengthen marriage. Building on successful, non-legal approaches communities of faith have taken to strengthen marital commitments, the Article introduces a somewhat controversial idea: communities of faith should be involved in strengthening marriage by participating in developing marriage contracts. The rest of the Article defends this proposition by explaining why communities of faith might desire to be involved in such a project, exploring what their participation might look like, and attempting to answer potential critics. In addressing likely criticism, the Article responds broadly to several of the major anticipated concerns.

1. BACKGROUND

   It is widely recognized that marriage as an institution is in decline in the United States. Though divorce rates have leveled off to some extent in recent years, they have remained at historically high levels. The divorce rate, calculated as the number of divorces per year per 1,000 married women age 15 and older, rose from 9.2 in 1960 to 22.6 in 1980, and then decreased slightly to 19.5 in 1996. (2) As marriages have become increasingly likely to end, people have become less likely to marry in the first place. The marriage rate, calculated as the number of marriages per year per 1,000 unmarried women age 15 and older, has continued to decline from a historical high of 90.2 in 1950 to 49.7 in 1996. (3) This decline in the marriage rate may partially account for the leveling off of divorce rates in the 1980s and 1990s. At least part of the explanation for lower marriage rates is the increasing prevalence of cohabiting unmarried adults. The number of couples cohabiting has steadily increased from approximately 440,000 in 1960 (4) to 2.85 million in 1990 and 4.9 million in 2000. (5) This represents a growth "[a]s a percentage of the total households in the United States ... from 0.8% in 1960 to 2% in 1980 to 4.5% in 2000." (6)

   Although a number of factors have contributed to the high divorce rate, at least some of the blame rightly has been placed on the advent of the now nearly universal "no-fault" divorce regime. As its name implies, no-fault divorce allows either party in a marriage to unilaterally terminate the marriage for any reason. Although it seems obvious that the ease of divorce in some sense encourages and destigmatizes divorce, for the most part the passage of no-fault divorce laws simply allowed the law to catch up with society regarding its changing attitudes toward marriage and divorce. (7) The impact of these laws facilitating and destigmatizing divorce should not be understated, yet it is also important to recognize that critics of no-fault divorce often over-emphasize the extent to which changes in divorce law itself wrought change. (8)

   Some praise these developments insofar as they hail the demise of what they perceive as an inherently exclusive and patriarchal institution that should have no place in a progressive society. (9) The Scandinavian countries, and Sweden in particular, often are held up as a model for actively seeking to end all forms of gender discrimination. (10) In its quest, Sweden has attempted to eliminate any legal or social pressures to marry as well as any economic consequences of divorce (11) through, for example, state allowances. (12) The fruit of such policies is clear: it is now as common for children to be born out of wedlock as it is for children to be born to married parents in Sweden. (13) Further, there is little, if any, social pressure in Sweden for a couple with children to marry or to stay married. (14)

   Despite the trends toward cohabitation and divorce, polling data indicate that the vast majority of Americans still regard the institution of marriage as very important to them. (15) Consistent majorities view the high divorce rate as a "Very Serious Problem." (16) In one survey, 62% of respondents said that divorce in this country should be harder to obtain than it is now. (17) Another survey found that 61% of respondents believed it should be harder for married couples with young children to get a divorce. (18) Surveys show that people support measures that would make it more difficult for couples to divorce. For example, 78% of respondents in one poll agreed with a specific proposal that would require all married couples with children to go to counseling before a divorce is granted. (19)

   Similarly, a high percentage of Americans sees marriage as especially significant for raising children. These opinions exist despite the fact that a majority of people no longer finds cohabitation by unmarried partners morally troubling. (20) In fact, among high school seniors, most "Agree" or "Mostly Agree" with the statement: "It is usually a good idea for a couple to live together before getting married in order to find out whether they really get along." (21)

   At the same time, a significant majority of people believes it is best for children to grow up in two-parent families. (22) Not only do Americans think it is best when children are raised by two parents, but surveys also show that a strong majority of Americans believes that it is better for children to be raised in a household with a married mother and father. (23) These results are especially significant given the division among Americans concerning the morality of unmarried cohabitation. A significant proportion of those who do not find unmarried cohabitation morally troubling believe that it is not the ideal family situation for raising children. Thus, disapproval of the high divorce rate and of cohabiting couples raising children outside of marriage does not appear to be limited to the small segment of the population labeled the "religious right."

   In fact, voices on the political left raised concerns about the implications of rising divorce rates as early as the 1960s. Then serving as Assistant Secretary of Labor, Daniel Patrick Moynihan issued his provocative report in 1965, The Negro Family: The Case for National Action. (24) In that report, he outlined how poverty among African Americans was linked, at least in part, to a breakdown in family structure. (25) Although his report received criticism as "blaming the victim" when it was originally published...