This week a study came out that shows how unilateral divorce laws make divorce more frequent. The empirical research shows what any sensible person would already guess — easy divorce laws make for more divorces. This is only magnified by the fact the divorcing party usually has great incentives to divorce and few incentives to stay (independent of whatever marital problems may exist). The fact that this is even a debate in academia shows how politicized and irrational the academy has become. Sure, there are plenty of other reasons to divorce that also drive the high rate of marriage failures, but government incentivizes failure, not success. That certainly doesn't help.
Add into this debate on divorce law the current debate on gay marriage. With easy divorce, marriage has been demoted to the status of a contract. If it's just a meaningless contract, why can't any combination of participants enter into it? A good question that cannot be easily answered when framed that way.
First off, marriage in this society (independent of its religious roots) is not even a contract. Contracts are designed to be enforceable in the event of a breach. Divorce rewards the breaching party most of the time. None of the terms of marriage are enforceable in any real way. There are no options for a spouse to rein in an adulterous partner and the few laws still on the books against adultery are waiting to be declared unconstitutional.
Further, easy divorce ends up putting the entire lives of the parties into the public record and under the control of a judge. One can walk to any courthouse in this country and start reading detailed accounts of broken marriages. Judges have tremendous power to allocate assets, assign living arrangements, and exercise large amounts of control over the parties. This should greatly worry any libertarian.
One wonders why gay people want a piece of that action. Straight couples are putting off marriage because many wonder if it's really worth all the risk. Gay couples certainly aren't immune from divorce either. Marriage is a loaded term devoid of any meaning behind it. It appears that gay marriage is an attempt at social acceptance, not any desire for benefits. Any real look at marriage shows that on the balance, marriage confers a net liability, not a net benefit.
Before discussing who can participate in marriage, the discussion that we should be having is what the institution of marriage should mean. Right now, the institution currently in place in the United States (again separated from its religious roots) is bordering on meaningless. There is certainly no shortage of people who think so considering every time a government program comes down to support marriage, the usual suspects try to stop it.
The fact is, any serious look at the history of the institution of marriage will show that it is a religious institution. Governmental recognition was not only a later development for marriage, but it also is a secondary aspect. The argument that marriage is a legal institution, a mere creation of government, is a profound mutilation of marriage. One would think that the myriad of governmental forms throughout history would have produced a myriad of forms of marriage, but it has not.
If there is going to be public recognition and support of marriage, there needs to be a corresponding public good and duty. Government shouldn't give out money simply because someone wants a paycheck. What public good is fostered by the recognition of gay marriage? The same could be asked of marriage in the way it is practiced here also. The fact is, until the promises made and the obligations uttered on the wedding day are actually binding in any real way, it's hard to find much of a public good.
Instead of arguing the particulars of marriage and haggling over the petty details, it's time the question of marriage in its fundamentals enters the public discourse. What should marriage mean? Should its obligations be actually binding? What public good is to be fostered? These are the questions that really matter.
John Bambenek is the Assistant Politics Editor for BC Magazine and is an academic professional for the University of Illinois. By trade, he is an information security professional, part of the Internet Storm Center and a courseware author and certification grader for the GIAC family of security certifications. He is a syndicated columnist who blogs at Part-Time Pundit and the executive director of The Tumaini Foundation which helps AIDS orphans and other children in Tanzania to get an education.
