Galois

No-Fault Divorce

One of the things Genevieve Wood brought up at the forum was the analogy of the movement for same-sex marriage to the movement for no-fault divorce.  (Her comments on this matter occur at 31:30 in the recording)   While the movement to eliminate prohibitions on interracial marriage is the favorite parallel of many advocates for same-sex marriage, the no-fault divorce parallel seems to be a favorite among many of those opposed.  In both cases the parallel is generally brought up as a response to particular claims.  In this case it was brought up by Wood as a response to the common claim of "How does same-sex marriage affect opposite-sex marriages?"  She says that the same question was asked about no-fault divorce, namely "How does the no-fault divorce of an unhappy couple affect the marriage of somebody else?"  And yet no-fault divorce has had a great impact on other marriages with divorce and cohabitation rising.  She says marriage is a public institution, and that's why there can and will be a broader effect.  I certainly agree that marriage is a public institution, but that doesn't really answer either question as to specifically how the other marriages are affected.  So let us look at the comparison a little more closely to see how each change in marriage might have some broader effect.

The first difference I see is at the more direct level.  Many of the harms from no-fault divorce come immediately from the divorce itself.  That is the children of the marriage, in some if not many instances, would be better off if the couple remains married instead of the parents getting a divorce.  I have yet to see anyone argue that the children of same-sex couples would be better off if the couple remains cohabiting instead of getting married.  (Wood refers to arguments over the welfare of these children "emotional blackmail", but that's an issue for another post).   So we see that already on the immediate level there is a big difference, and we will see how this difference can play out in the broader impact.

Part of how no-fault divorce impacted other marriages was through an imitation effect.  As divorce became more common, people went into marriages without as much certainty that the marriage would last.  This could become a self-fulfilling prophecy in at least two ways.  One, people might be more reluctant to make personal sacrifices for the sake of the marriage with the knowledge that the marriage could end and they would have to be prepared to fend for themselves.  Secondly, when times got rough, divorce was seen as a more realistic alternative.  And then you have those that became reluctant to marry in the first place because of the rising divorce rate.  Why marry just to divorce later?  Especially vulnerable to this imitation effect are children of divorce themselves.  If same-sex marriage has an imitation effect it would mean more people deciding to marry instead of cohabit.  The demand for marriage is certainly a testament to its worth.  Again this imitation effect is especially true for children of same-sex couples who could now grow up with marriage as a model instead of cohabitation.  Furthermore, withholding same-sex marriage would continue to lead to a proliferation of marriage alternatives like domestic partnership plans that are open to oppposite-sex couples as well.  Just as divorce became a more realistic alternative to remaining married, these programs as well provide opposite-sex couples many realistic alternatives to marriage in the first place.

This leads us back to another direct effect of no-fault divorce.  No-fault divorce changed the rules of every marriage.  Even for a couple that did not divorce there was always a chance of it occurring.  Every marriage has at least a chance of going through some rough times.  No-fault divorce made it at least a little more difficult to remain married through those times.  With same-sex marriage, though, the same rules still apply to opposite-sex marriages.  They just apply to other couples as well. 

Later in the forum (1:11:20) Wood was asked whether she would support an amendment for a uniform national policy on divorce.  She said no, because divorce did not alter the definition of marriage.  I disagree.   Whether marriage is a lifetime commitment, or just a temporary arrangement seems to me to be a much bigger difference in the definition of marriage than viewing one's spouse as a human being without reference to gender. 

While I think lessons can and should be learned from the no-fault divorce debate, for example changes can have unintended consequences, I do not think the mechanism fits the same-sex marriage scenario very well.  Nor do I think that such lessons forestall any change.  We should take any claims about potential harms quite seriously, but we also need to carefully examine how such harms may come to pass.

UPDATE: Eve Tushnet responds with an additional difference and a dispute.  Her difference is that divorce is not viewed as an ideal, whereas same-sex marriage is.  I agree with this difference, but I see SSM as upholding marriage itself as an ideal.  For it is allowing marriage over the alternative of cohabitation.  I don't see it changing whom the ideal spouse is.  For most Jewish mothers the ideal will still be a doctor. 

She disputes the claim that divorce is a bigger change in definition, since many societies have had rules for divorce whereas viewing one's spouse without regards to gender is a late twentieth century innovation.  I agree that the latter is more novel, but marriage has been progressing in that direction since the early nineteenth century.  Which is a bigger change in definition depends on what specific change we are referring to.  In general I'd say the exit requirements of marriage are more fundamental to its definition than the entrance requirements.  As for the specifics I do see certain changes in divorce laws as greater alterations than the change from egalitarian marriage to allowing same-sex marriage.  In regards to Jewish divorce, I would note that even that was rather a novel concept from my understanding.  I don't believe other cultures at that time allowed a woman to remarry after divorce.  (A man could of course remarry, but then a man could remarry even without a divorce).    But much of this dispute I think comes down to what changes are "definitional" and what is a variation within that definition, a topic about which I hope to write soon.

 

Gay Divorce

So are gay marriages more likely to end up in divorce than straight marriages?  I don't know, but I don't see how it matters in determining whether or not same-sex couples should be able to marry.  Social scientists love to try to determine what variables increase the risk of divorce.   I have never heard it argued that we should use such information to prevent couples from marrying, though.  I can hardly imagine telling two children of divorce that they shouldn't marry because their marriage is more likely to end in divorce.  Much less can I imagine them being told that they cannot marry because of it.  The studies should rather be used to help discover ways that we might strengthen these marriages.  The studies might help in developing more effective methods of marriage counseling.

Part of the reason we would never advise a couple to avoid marriage in these circumstances is because we believe that no matter what the risk of divorce, marriage is more stable than cohabitation. Yes the surest way to reduce the divorce rate is to eliminate marriage, but that hardly solves anything.  Divorce is not the problem.  It is the family dissolution that underlies divorce.  And marriage reduces the chances of dissolution.  Now some might claim that marriage has only been shown to decrease the chance of dissolution in opposite-sex couples, it doesn't necessarily follow that it would have the same effect for same-sex couples.  While we can't be certain the degree to which marriage might make same-sex relationships more stable, I find it hard to believe that it would not have at least some stabilizing effect.  We can see this by looking at how marriage is better at stabilizing than cohabitation.  One way is that marriage both encourages and allows a couple to become more economically interdependent.  The details on how marriage does this vary from state to state, but marriage always does this.  In part it is done by how married couples may own property and by rules for determining who owns the property acquired into the marriage.  In part this is done by making spouses legally obligated for certain debts incurred by the other.  In part this is done by making it easier for one spouse to financially rely on the other.  In fact it seems like a good deal of family law deals with these economic matters.  The laws of marriage also encourage more emotional interdependence.  A good example of this is spousal privelege which ecourages free communication within the marital relationship. 

One overlooked way in which marriage acts as a stabilizing force, though, is divorce itself.  While many family advocates complain about the ease of divorce today, it is still more difficult, time-consuming, and expensive than merely walking out on somebody.  It is reasonable to think that the legal requirements of divorce themselves act as a deterrent to it.  Should a couple decide to divorce anyway, the laws which govern it are designed to (at least in theory) provide some amount of protection to a spouse which had been financially dependent on the other.  Paradoxially this protection makes it easier for the financial dependence to occur in the first place, which itself makes the divorce less likely to occur.  Now nobody gets married in order to get divorced, so we don't hear a lot about gays and lesbians demanding the right to divorce.  It is a serious protection, though, that they are being denied. 

I have focused in this post on the effects of the laws of marriage in promiting stability, but there is also a very important cultural component.  In addition to our legal obligations to care for our spouses, there are also social expectations as well.  People are expected to care for their spouses and stick with them in difficult times.  Some of this comes though in the law, for example in the Family and Medical Leave Act, but much more comes across in how we act.  We ask people how their families are doing.  We are understanding when family obligations arise.  We offer to help.  We congratulate one anoter on a marriage, but express sympathy upon hearing of a divorce.  Despite the prevalance of divorce today, it still carries a social stigma that perhaps acts as more of a deterrent than the law.  It is because of this cultural component that Jonathan Rauch believes same-sex marriage should be introduced first in those states where gay relationships are more culturally accepted.  While he makes a good point, I think there is another lesson to be learned.  As with all marriages, same-sex marriages will be more successful with the more support we give them.   

(For more on the title of this post see here)

Cole Porter's Gay Divorce

Gay Divorce  (no definite article) was the title of a 1932 Cole Porter musical starring Fred Astaire.  As I'm borrowing the title for my next post, I thought I might share some fun facts about the musical.  The show was Astaire's final performance on Broadway, and his only appearance on Broadway without his sister Adele.  The show ran 248 performances at the Ethel Barrymore Theater (a moderately successful run for that time) before moving to London, retaining most of the Broadway cast including Astaire and the female lead Claire Luce.   

The following year, 1934, RKO decided to turn Gay Divorce into a movie musical (or "radio picture" as they liked to call it).  Several changes were in store, though.  While keeping some of the cast that had been in London and New York--including Astaire, Erik Rhodes, and Eric Blore--Ginger Rogers replaced Luce in the role of Mimi.  While Rogers had appeared with Astaire in a number ("The Carioca") from Flying Down To Rio the previous year, this marked the first starring vehicle for the two as a team.  In other changes, almost the entire Porter stage score was dropped with the lone exception of its most memorable song "Night and Day".  Two different songwriting teams were brought in to write replacements.  The first team of Harry Revel and Mack Gordon had just recently begun what was to be a very successful stint in Hollywoord.  The other team of Con Conrad and Herb Magidson ended up winning an academy award in the newly created category of best song with "The Continental" which they wrote for this picture. 

The most interesting change, though, was the title of the movie.  The Hays Office forced RKO to change the title because they said a divorce could never be gay.  Apparently a divorcee could be, though.  So a definite article and an "e" were added and thus was born the film classic The Gay Divorcee.  So long before there was ever controversy about gay marriage, there was controversy about gay divorce.