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Marriage: Legalize It!
Eve Tushnet • How “no-fault” divorce hurts women and children • December 1999

This past election season, a strange little item found its way onto the ballots of Connecticut voters. The child poverty referendum, a “non-binding resolution,” passed overwhelmingly, 2,856 to 426, even though it amounted to nothing more than an affirmation that children shouldn’t suffer. It required no programs, it made no specific proposals—but, as everyone pointed out, it at least got us talking about the issue of child poverty. 

“Us” here means men like Sen. Paul Wellstone and Alderman Julio Gonzalez. Their facts are indisputable, stated on posters and pamphlets, census reports and campaign platforms. Children have replaced old people as the nation’s poorest group. It’s been called “the feminization of poverty”: Mothers sink below the poverty line, and their children are pulled down with them. The solutions the Left has proposed are familiar, dealing only with the aftermath of the catastrophe and never its cause.

Meanwhile, the Right has gotten stuck in a defensive position, struggling to show why this or that state or federal program is bad. For the most part, the Right in this country has demonstrated as much distaste as the Left for the most difficult tasks: figuring out why children and their mothers are poor, and what we can do to prevent child poverty rather than just rolling up in the ambulance after the wreck is over. When it comes to one of the major causes of child poverty, all our top political players seem to have taken a vow of silence.

No one will talk about marriage, the primary and ideal place for child rearing, or about its collapse. We are told that children can be raised just as well by a single woman, by a woman and her live-in boyfriend, by a woman and her second husband, as by a married couple; so why worry about the rates of divorce and out-of-wedlock births? Even better, the rates of both have begun a modest decline—although the rate of marriage has declined steeply as well. The conventional wisdom tells us that government action to shore up marriage is repressive, unnecessary, and impossible (all at once).

Yet changes in the law produced the current system, in which more and more of the privileges and protections of marriage are being stripped away. Gradually, judges and lawyers succeeded in relaxing divorce laws on a state-by-state level, allowing for “no-fault” divorce, shortening waiting periods, and, most importantly, making unilateral divorce possible. Unilateral no-fault divorce allows either partner to end the marriage at any moment, for any reason, despite all objections from his or her spouse. As Maggie Gallagher points out in The Abolition of Marriage, this makes marriage the only contract in which the state favors the defaulting partner. It makes an “in sickness and in health, for richer or for poorer, till death do us part” marriage illegal—spouses are forbidden to claim each other. They remain forever not a family, but a small association of individuals, with even fewer legal protections than most other associations.

There are many bookshelves’ worth of studies on the harmful emotional effects of divorce and unwed motherhood on children. (This does not mean that single or divorced mothers can’t raise their children well—most children of these mothers are fine, and most of these mothers are fighting valiant battles to raise good children in a bad situation. But the rates of emotional trouble are higher for their children nonetheless.) And the decline of marriage has had consequences which are even easier to measure, as mothers’ pocketbooks get lighter and their financial situations more unsteady. Gallagher cites all kinds of measurements of poverty, and in all of them married couples do much better than single mothers: In 1991, single mothers were “nine times more likely than married families to live in ‘deep poverty,’ with incomes of less than half the official poverty line.” Unwed mothers are poorest, followed by divorced mothers, followed by married mothers. In fact, divorced mothers make about half of what married ones do, and never-married mothers make half of that (figures are from 1992).

Even if children don’t fall under the official poverty line after a divorce, they do get poorer. A study conducted in 1989, which Gallagher cites, showed that “The average child from a nonpoor family will suffer a 50% drop in income after divorce.” 

Divorce is a financial catastrophe, and it shouldn’t be too hard to understand why. First of all, any emotional disruption makes it harder to focus on earning cash. After divorce, women report more physical problems (like headaches and jaw pain) than married women. This doesn’t make working any easier. More obviously, the two incomes that once supported one household, one electric bill, one coffeemaker, one gutter repair job, and so on, now must stretch to cover two of everything: one for the ex-husband, one for the ex-wife.

Then there are the hidden costs, the sacrifices married men will make for their children and the motivations they have to work harder than single or divorced men. Courts can force a man to pay alimony. They can’t force him to work extra hours, take a second job, pay for college, or any of the other task that married fathers are expected to perform. They also can’t prevent him from starting a second family, and pouring his economic energy into new children (unless he or his new wife ends that partnership as well) rather than the old ones. It need not be a clear-cut case of paternal abandonment: Women are the formal initiators of most divorces. But even if the wife is the one who leaves her husband, economically she suffers more than he does (especially if she keeps the kids, as she almost always will).

The new order of marriage not only thrusts more people into poverty, it makes it harder for them to get out. A major factor in determining the quality of a neighborhood—especially its rates of crime and delinquency—is the proportion of single mothers raising children in that neighborhood. Therefore, when the federal government set new standards for public housing in the 1960s, forbidding localities from favoring married families in housing projects, it set the families in those projects up to fail. Cities could no longer control the proportions of single mothers in a given public housing development, so single-mother households clustered together—the worst possible situation for those single mothers, who need the supports of a strong and safe community most of all, as well as for the married families that remained. Everybody lost.

At this point it should be clear that the problem of family dissolution did not occur organically, without government action, in a spontaneous outpouring of the people’s will. Specific government policies created a situation in which half of all new marriages fail and the average “child born outside of marriage spends just six months living with his father” (Gallagher)—six months out of his entire life. Can specific government policies do anything to fix the mess?

There are two problems: We lack the capability to make lasting marriage promises, and we are losing the desire to do so. Government policy can help us with the first problem, and, in fact, one state has already taken the initiative. Louisiana offers the option of “covenant marriage,” in which divorce on traditional fault grounds (such as spousal or child abuse) is still possible, but no-fault divorce is ruled out. Legislators in California, Indiana, Maryland and Virginia have recently proposed covenant-marriage laws, but none have passed as yet. So for now, Louisiana remains the only state in the Union where marriage is legal again, where the law favors loyalty and not oathbreaking.

But before covenant marriage can do us any good, we must be convinced that its promises are worth making. We must be willing to give up the autonomy, the fluid and mercurial identity, which modern marriage allows us; we must be willing to bind not just our present selves but the people we might become in the future. Marriage requires a valuation of faith over proof, for no one can prove to us how we will feel in ten years. It sometimes requires valuing our children’s happiness over our own, for, contrary to the prevailing orthodoxy, children can be very happy and can flourish even when their parents’ marriage is stale or conflict-ridden. (Studies show that a high-conflict divorce is worst for kids; a marriage with deep and sustained conflicts is next-worst; then a low-conflict divorce, then a marriage that has high-conflict periods but not many years of bitter fighting. Unsatisfying marriages where the parents don’t battle are counted as “low-conflict.” This ranking does not exactly prove that “the kids wouldn’t be happy if we weren’t happy.”) There are times when the interests of parents and children really do clash. We have decided to favor the parents. In doing so, we have made promises worthless, children fatherless, and families poorer. 

Covenant marriage is a good practical proposal, but in order to work it requires a lot of loud proselytizing for loyalty. This should be one of the first items on the agenda of anyone concerned with child poverty—not to mention love.

—Eve Tushnet, Editor-at-Large, is a senior in Morse College


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