Can government strengthen marriage?

Christie Brinkely (r) and ex-husband David Cook before their divorce 

An interesting article by American Enterprise Institute scholar Kevin Hassett at considers the problems that divorce causes for society in addition to its terrible consequences for the individuals most directly involved.

Using the recent Christie Brinkley-Peter Cook divorce as his news hook, Hassett points out the nasty allegations that arise in divorce cases as each spouse tries to prove that the other is a monster and should get less of the couple’s money after the split, being an undeserving swine:

The ugliness of the case was best-captured by the news alert posted by the Associated Press announcing the settlement: "Christie Brinkley settles NY divorce with husband who had teen mistress, online porn habit."

Ms. Brinkley’s allegations against her husband may well be true, of course, which makes them also indicative of the gross realities of people’s banal, reckess indulgence of uninteresting lusts.

For a variety of reasons, nearly half of all marriages in the United States end in divorce. Clearly that is not a good thing. It is important to note, however, that around two-thirds of first marriages do not end in divorce; the numbers are skewed higher because of multiple marriages and divorces among those in the one-third of first marriages that do fail.

Even so, one-third is a terribly high failure rate.

These failed marriages impose awful costs on the families invloved, Hassett notes:

Researchers at Ohio State University found that while divorce reduces a person’s wealth by an average of 77 percent, men typically have 2.5 times the wealth of women after a divorce.

Toll on Children

Living in a family that is not of the traditionally nuclear variety also takes a toll on children. A thought- provoking review of the literature by economists Ron Haskins of the Brookings Institution, Sara McLanahan of the Center for Research on Child Wellbeing at Princeton University, and Elisabeth Donohue of the Woodrow Wilson School of Public and International Affairs at Princeton University, highlights the costs vividly.

Most compelling is their discussion of a 2005 study by Paul Amato: “Amato reports that if the same share of children lived with their biological parents today as did in 1980, about 300,000 fewer children between the ages of 12 and 18 would repeat a grade, 485,000 fewer would be suspended from school, 250,000 fewer would need psychotherapy, 210,000 fewer would be involved in violence, and 30,000 fewer would attempt suicide every year.”

Hassett then asks the question, since divorce is so bad (which I think we should accept at least provisionally as a premise), what can society do to help strengthen marriages so that they don’t break apart as commonly as they do?

Much to his credit, Hassett, a political conservative, acknowledges that the efforts of Washington policymakers to reduce the incidence of divorce have accomplished little:

You can hardly say policy makers haven’t tried. Over the past decade or so, a number of steps have been taken.

The 1996 welfare reform set a national goal of encouraging the “formation and maintenance of two-parent families” and reducing the number of out-of-wedlock births. . . .

President George W. Bush expanded these efforts in 2002 with the Healthy Marriage Initiative. The program provides $100 million per year in state grants designed to “help couples, who have chosen marriage for themselves gain greater access to marriage-education services, where they can acquire the skills and knowledge necessary to form and sustain a healthy marriage.” . . .

In addition, Bush’s 2001 tax cuts also tried to eliminate any marriage disincentives brought about through the tax code. The law relieved married couples in lower tax brackets from the “marriage penalty” by increasing their standard deduction to twice that of singles.

These efforts, though, have hardly made a dent in the problem. That’s evident both from the macroeconomic trends, which continue to worsen, and from the scientific literature. Summarizing what we know, Haskins, McLanahan and Donohue write that “the evidence that pro-marriage programs will produce benefits is thin.”

Acknowledging that the programs tried so far have not worked, Hassett says that we should look to science to solve the problem:

[C]ommit to using the scientific method to discover innovative public programs that work. A good way to do this would be to provide ample research grants for pilot programs designed to encourage family formation, and to consider relying on faith-based initiatives in this area as well.

This seems to me a rather hopeless notion. Given that all the national-government efforts to strengthen marriage have gone for approximately naught, perhpas the real reason is neither that "the problem is insurmountable," as Hassett suggests as one possibility, nor that the efforts so far simply haven’t been guided by sufficiently clever science.

These two responses represent the extremes of despair and of false hope, it would appear. 

I think that there’s a better answer than either of these, fortunately. It’s based on my foundational premise about government and human society:

Nearly all good social actions come as the result of individual human choices, and nearly all bad ones are caused by government.

That’s my story, and I’m sticking to it, as Ozzy Osbourne so aptly said.

It’s a very good template for thinking about social actions, I believe, and is surely one of the basic premises behind classical liberalism.

So, how does this apply to marriage and divorce?

Very directly, actually.

Here’s how.

The government policy that has done the most to undermine marriage in this country is no-fault divorce.

Enacted in state after state beginning in the 1960s, no-fault divorce laws were put in place for highly compassionate reasons—and hence ought immediately to arouse our suspicion and hostility. The idea was to help prevent people from being trapped in loveless marriages, especially ones in which children will be exposed to daily hostility between their parents.

Even the most cursory look at the daily news will show how successful this policy has been at achieving its ideal of ridding the society of all bad marriages and retaining only the good ones. One might even suggest that there is some causal connection between no-fault divorce and rise of domestic violence which has coincided with the implementation of such policies across the nation. I certainly think it more than merely plausible.

The pros and cons of no-fault di
vorce have been debated endlessly, and are well summed up in the article "The Issue of No-Fault Divorce."

The facts of the matter appear to compel a thoroughly dire conclusion: no-fault divorce undermines all marriages by creating an easy "out" for every married person. All marriages have their ups and downs, but with no-fault divorce, each partner is always vulnerable to the possibility that their spouse may simply call it quits during one of the "downs."

We could put that word ‘always’ in italics and bold type, to emphasize the central effect of no-fault divorce laws on all marriages at all times.

Thus it seems clear that no-fault divorce laws undermine all marriages by weakening each party’s trust of the other, regardless of how strongly they may love each other or be committed to marriage in general and their marriage in particular.

That, our course, must constitute a pervasive negative consequence of government policy on all marriages in our society.

This points the way toward a highly practical, rather deceptively simple solution to our very high divorce rates, and a strong philosophical foundation for this answer is available in the straightforward application of classical liberal principles of political philosophy. 

The key is to recognize that as far as society is concerned, marriage is a contract between two individuals. And one of the few but central roles of the state is to enforce contracts. What no-fault divorce is, then, is a universal failure of the state to enforce a particularly vital and consequential contract.

The solution, then, is very simple and direct: end no-fault divorce. Governments should require that a party calling for a divorce will show that the other party has violated the original contract so egregiously that the only fair outcome is for it to be dissolved and the wronged party to receive just compensation.

This is a simple but not simplistic proposal. Certainly it leaves much discretion to judges, juries (potentially), and of course the parties to each and every marriage in the nation. It is, in a word, liberating.

Undoubtedly, religious and cultural factors must have some effect on divorce rates as well, and they could certainly contribute to the effort to strengthen marriage in the United States. A recent Barna poll, for example, refutes the now-common belief that evangelicals have a higher divorce rate than the U.S. population as a whole. In addition, a 2007 essay in the New York Times pooh-poohing divorce as a social issue included this useful tidbit of information:

The story of ever-increasing divorce is a powerful narrative. It is also wrong. In fact, the divorce rate has been falling continuously over the past quarter-century, and is now at its lowest level since 1970. While marriage rates are also declining, those marriages that do occur are increasingly more stable. For instance, marriages that began in the 1990s were more likely to celebrate a 10th anniversary than those that started in the 1980s, which, in turn, were also more likely to last than marriages that began back in the 1970s.

A look at divorce certificates—certainly a superior method of measuring divorce rates—confims this trend:

The narrative of rising divorce is also completely at odds with counts of divorce certificates, which show the divorce rate as having peaked at 22.8 divorces per 1,000 married couples in 1979 and to have fallen by 2005 to 16.7.

These numbers, though indicating a significant improvement over the past three decades, are still too high, by historical standards, and given the divorce consequences noted above, we’d do well to work on bringing them down further.

Also interesting is the fact that the divorce rates went up as the 1960s mentality spread through the population and as no-fault divorce became common. Once the Do Your Own Thing poison began to work its way out of our national veins and as people became used to the new rules regarding marriage, things turned around and began making slow progress toward a better marriage culture. But divorce rates in the United States are still at an unhealthily high level, most sensible people would agree.

So although cultural and religious efforts are certainly important, it’s not implausibe to think that their effect has been blunted by the government’s refusal to treat the marriage contract as a serious commitment that should not be sundered without either strong agreement from both parties (which is not the case with most divorces) or a sufficiently egregious breach of the contract by one of the parties.

Where ending no-fault divorce is unbeatable, indeed, is in two areas: one, its strengthening of this vital contract with all its attendant social impacts, and two, in its restoration of government to its proper role in dealing with marriage.

That role is the same one the state should have in all social situations: the enforcment of contracts and the adjudication of disputes among parties to them.

When the state fulfills its proper role, society functions the very best it can. Isn’t that what we all want?