Dissolving Marriage

If everything is marriage, then nothing is.

Canada, you don’t know the half of it. In mid-January, Canada was rocked by news that a Justice Department study had called for the decriminalization and regulation of polygamy. Actually, two government studies recommended decriminalizing polygamy. (Only one has been reported on.) And even that is only part of the story. Canadians, let me be brutally frank. You are being played for a bunch of fools by your legal-political elite. Your elites mumble a confusing jargon to your face to keep you from understanding what they really have in mind.

Language Exam

Let’s try a little test. Translate the following phrases into English:

  1. Canada needs to move “beyond conjugality.”
  2. Canada needs to “reconsider the continuing legal privileging of marriage and other conjugal relationships.”
  3. Once gay marriage is legalized, Canada will be able to “consider whether the legal privileges and burdens now assigned to marriage and other conjugal relationships can be justified.”
  4. Canada needs to question “whether conjugality is an appropriate marker for determining legal rights and obligations.”

[Answers: The English translation of #1,# 2, and #4 is: “Canada should abolish marriage.” The translation of #3 is: “Once we legalize gay marriage, we can move on to the task of abolishing marriage itself.”]

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14 thoughts on “Dissolving Marriage

  1. The “slippery slope” concerns are completely justified in legal terms, although I’m uncertain that just because something is legal it necessarily means it will become more common or popular. It’s legal now (and has always been) to live with five other adults in a polygamous type living situation (if you call them “roommates” and don’t actually marry any of them). Nevertheless, I can’t say I know anyone personally who even desires to live like this (even among people who do not define themselves as religious-minded).

    Has divorce become more common now that it’s easier to obtain? Yes, but I’m thinking that it’s more due to the fact that women are no longer dependent on their husbands financially to the degree they once were, among other things. Overall, people still seem to desire to keep their relationships going and see marriage as a good worth some effort even as the cultural and financial pressures to stay have decreased and even if they fail in their efforts.

  2. Easy Divorce Has Undermined Full-Motherhood

    Despite the ho-ha and folderol about fertility technologies, the truth is that the best time to have children is when the mother is in her 20’s. Fertility drops very sharply after 30 and the incidence of birth defects and life-threatening miscarriage go way up. In terms of the success of the pregnancy, the health of the mother and the health of the child, any OB-GYN would tell you the same: have your babies in your 20’s. Delay and face problems.

    If women have children in their 20’s and if those children are going to be cared for directly, by a parent, then someone has to stay home and really care for those children. Society PREVIOUSLY accepted the idea that MOTHERHOOD was a TRUE SERVICE to society and divorce laws protected full-time mothers by PREVENTING them from having the rug pulled out from under them after they became mothers.

    I actually practiced divorce law during the period immediately after the acceptance of “no fault” divorce.The results were not good for women. Prior to the 60’s the legal analysis of marraige was roughly comparable to the legal analysis of contracts. The man and woman entered into marriage as a contract and neither could be released from the contract without a showing that the other side had failed to live up to their obligations. This idea is comparable to contract law analysis.

    What “no-fault” divoce really means is this: any adult can get a divorce for any reason at any time. The state will not even inquire into the reason. Any adult now has a legal right (by statute, not constitution) to dissolve his marriage bonds. At dissolution of these bonds, property is divided and support obligations are set.

    In reality very few women receive “alimony” for more than two years, if at all. Women generally suffer a catastrophic drop in their standard of living if they have children. Stated another way, they drop into real poverty. The very act of dividing up property tends to be destructive, frequently hasty sales result in a loss of equity in the property. Judges will set aside homes and prevent their sale if one parent is living in that home with their children, HOWEVER, no judge can save you from simple foreclosure by the bank if you can no longer pay the mortgage.

    As society pulls support away from FULL-TIME PARENTHOOD, it pulls support away from CHILDREN and their successful socialization. Children are LESS well socialized in third-party settings, no matter what Hillary says. Any parent taking a look at the typical day care, knows that the “crowd control” mentality of day care providers is no match for an attentive parent. A parent’s values are taught on a day to day basis to a child, in little bits, here and there. A child misbehaves and the parents explains WHY the behavior was wrong. Day care providers could care less about transmitting MORAL values to a child. Day care providers frequently do little more than sit a child down in front of a TV with juice and a cookie.

  3. JamesK:

    So, let me see if I understand the gist of your commentâ?¦what is legally and culturally approved in a society makes no difference to behavior as people just naturally behave in accordance with their own best interests instead of just taking the path of least resistence.

  4. Partially, Michael, yes. Depends on the person. Some people don’t care one iota about what society thinks about various types of behavior. Some people do.

    Some people marry others that their families do not approve of because of assumed character issues or ethnic issues. Some kids don’t take over the family business despite strong expectations that they do. Interracial couples to this day still receive quizzical looks and sometimes disrespectful comments (as this commentary admits), but they continue to marry despite societal and family opposition. It’s not that these people don’t feel pressure exerted on them, but some other value or desire they have ends up taking a more prominent role.

    There are others who from the day they were born seem to base their path on the expectations of others (right or wrong). I’m not saying that this is necessarily good or bad (these pressures don’t always involve ethical issues), I’m simply suggesting that yes, for some the expectations are not the deciding factor in what they choose to do or not do.

  5. JamesK, General Trends, Individual or Scattered Exceptions and Public Policy

    JamesK, you seem to think that if you can find a single counterexample to a general principle that you have refuted the principle. Not in the slightest, if the public is debating an issue and trying to determine whether to pass a particular law, it is appropriate to look at the probable impact of the law on the vast majority of people. The mere fact that a few people here or there do not follow the general trend is not relevant. You don’t seem to understand balancing and proportion.

    James, it is logical to assume that the legality or illegality of a particular type of conduct has an impact on a person’s choice to engage in that conduct. While it may be true that legality or illegalilty is not the SOLE determining factor, but ordinary common sense and life experience indicates that it has a big impact.

    Stanley Kurtz has collected studies of personal behavior in Europe that have been done over several decades. Those studies DO show that the de-criminalization of homosexual conduct has result in an increase in homosexual conduct. The studies DID adjust for the fact that some people may have simply been more public in their conduct, adjusting for that factor, the studies STILL showed in absolute and relative increase in homosexual conduct. Legality or illegality truly affects conduct.

    We now have millions and millions of abortions a year in America, even taking into account previously illegal or hidden abortions, no social scientists doubts that abortions are far, far more common now that they are held to be legal.

    There is no doubt that the removal of social stigma from divorce and the easing of legal barriers against divorce has greatly increased its frequency. Marriage is simply no longer something that women can rely on for support if they become mothers. The ease of divorce has resulted in many people simply giving up, when if the barriers to divorce were higher, they might have stayed and tried harder to make it work. No one who has been married more than 5 years, does not understand that you have to constantly reaffirm your desire to remain married, in spite of difficult problems that come up and tempt you to walk away. The reward comes from sticking in there through the tough times and coming out stronger on the other side. Easy divorce undercuts this process, and we all the poorer, especially the children.

    The general refusal of so many in this country to recognize and come to grips with the real threat to our country and the concentrated effort that will be needed to defend her may well be a product of this indulgent, me-first, give up easily society that has developed. People are not committed to marriages, not committed to parents, and not too surprisingly, not to committed to their country.

  6. Well, at least when Sharia Law becomes the law of the land, it will be easy to tell who really loves Christ. I hope I pass the test if it comes to me. Certainly, it is quite likely to be a choice my son has to make. IMO we are already boiled frogs.

  7. Note 6. Michael

    Yes, I tend to agree with you. The utter failure of the major editorial boards to address the Cartoon controversy is an example. The Universities have welcomed jihadi apologists to tenured positions and resisted their prosecution (see Sami Al-Arian). Bush has allowed the Mexican border to devolve into chaos an disorder. I agree that bad times are coming for non-Muslims all over the world.

    First, failure to investigate with a skeptical mind
    First, they failed to investigate all claims and all parties involved with a sutiably skeptical eye. There exists considerable evidence that a particular group of Danish imams intentionally developed an express campaign to take the rather innocuous cartoons that were actually published and distort them. This group of Danish imams is supported by Saudi Arabia. These are very important facts that the MSM showed little or no interest in.

    Second, failure to put the initial publication of the cartoons in context. The cartoons themselves were not “gratuitous.” Gratuitous means “without any good cause.” The cartoons themselves were a protest against censorship by terror.

    Third, greater interest in denying domestic political rival a talking point
    One of the American newspapers that I read regularly printed an editorial that reveals that it was more interested in defusing and deflecting any political gain that might accrue to the domestic political opponents of the editorial board, than they were in reporting events of true world-shaking importance. They assumed the “more thoughtful than thou” posture with the Danish paper. They described it as “right-wing,” when in fact the “right-wing” in Denmark is positioned on the left side of the American Democratic party. They characterized the publication of the cartoons as a rude juvenile act, rather than an free speech protest. Their performance was sad and typical.

  8. Missourian correctly notes that it “is logical to assume that the legality or illegality of a particular type of conduct has an impact on a person’s choice to engage in that conduct.”

    Absolutely. My point was simply that it is but one source of ideas about morality, and as such, will vary in level of importance from person to person. Not everything that’s illegal is also immoral, though. You can get a small fine for jaywalking, but I’m doubtful that it’s something a person need go to confession over.

    I guess what I’ve yet to hear from anyone here is what specific types of conduct they would like to see criminalized and why. I need specifics. Do we bring back Prohibition? Outlaw gambling and smoking? Criminalize fornication or blasphemy and swearing? Lying to one’s family members? Eating too much cheesecake (gluttony)? (I think I remember someone mentioning prostitution being legal in an otherwise solidly Orthodox country — not that I’m advising that, but opinion here seems to vary widely on this)

    I believe the Church and one’s family need to be the primary voice of morality in society, and only they can provide the fullest understanding of morality. The law can inform, but there are firstly practical considerations to consider. I’m not sure there would be enough jails to hold everyone should we criminalize every sin. Secondly, would this not eventually encroach upon some of our most basic liberties in the simple enforcement of these laws? I don’t see a point in creating a law unless one intends to (or is able to) enforce it: this becomes an issue when the conduct involves a sole individual. Another problem is that not everyone agrees upon the various morality of certain types of conduct (even within Christian denominations).

    So when I hear someone say “The law needs to uphold our ideas of Judeo-Christian values”, while that sounds real nice and all, there are some serious implications involved that no one seems to wish to address beyond the sound bite. This is why my views of “moral legislation” tend to be Libertarian in nature. Apply the law towards conduct that extends beyond oneself. (Again, I’m not stating this as legal theory, I’m simply stating that these are the types of laws that I as a voting, taxpaying citizen would encourage or discourage my Congressperson from accepting.)

  9. JamesK, Read McConnell for starters

    The questions that you have raised here HAVE been addressed in detail in constitutional literature. I suggest you spend some time with McConnel and his various writings on the Christian perspective on constitutional theory. McConnell always provides detailed footnotes leading the reader to other major thinkers on the same issues. Spend a couple of months with him and he’ll answer most of your questions.

    Again, you are theorizing in a vacuum.

  10. Jerry,

    You are raising something of a problem for me. McConnell is a bona fide legal historian, philosopher and theorist. He is known for his in-depth study of constitutional religious issues. I don’t think he has written anything for the layperson, nothing “light” or “introductory.” So if I refer you to McConnel as a “starter” I am not being very helpful. Here are his books: http://www.amazon.com/exec/obidos/search-handle-url/index=books&field-author-exact=Michael%20W.%20McConnell&rank=-relevance%2C%2Bavailability%2C-daterank/002-4760282-9369611. He has also written a great deal in professional legal journals. Those articles are not very accessible.

    The reason I refered JamesK to McConnell is that McConnell is truly the leading legal scholar in this field AND because I have a long running argument with JamesK about his burning desire to do legal theorizing without acquainting himself with our legal history. I previously referred JamesK (with no result, I am detect) to Republic of Virtue, by Daniel Robinson. This is a series of recorded lectures put out by the Teaching Company. It is an excellent overview of the development and contents of the American Constitution. There are only 12 hours of lectures and they are perfect for listening while doing chores or exercising. Robinson includes with his taped lectures an outstanding bibliography allowing the reader access to leading scholars in the various subfields. You can buy this at Teaching Company or borrow it from MOST libraries if you don’t want to spend the money. It is probably the most painless way to learn Constitutional history and theory (history and theory overlap as you will see if you start reading)

    Cavaet, I neither a legal scholar nor a transactional attorney, this means I do not help people with real estate, wills, trusts, commercial transaction, and whatever. I am a TRIAL lawyer. I specialize in taking cases to Court and fighting for my client. In my world, to be called a “fighter” is a compliment, which I would gladly accept. On many occaisions I have won cases for my clients simply because I fought harder. People who are legal scholars are much like scholars in any other field. While I do love books and reading, I would nearly always prefer to fight a good fight than to write or read a book.

    For verily, if there is anything sweeter than exposing a liar on the stand, it can only be the announcement of a jury verdict in your favor. (This is a great field if you like the idea of accelerating your rate of aging.)

  11. Missourian, I promise to take a look at McConnell’s writing and report back with a completely unbiased opinion. 😉

    “Legal theory (from wikipedia): Law (from the Old Norse lagu) in politics and jurisprudence, is a set of rules or norms of conduct which mandate, proscribe or permit specified relationships among people and organizations, intended to provide methods for ensuring the impartial treatment of such people, and provide punishments of/for those who do not follow the established rules of conduct … Legal practitioners, most often, must be professionally trained in the law before they are permitted to advocate for a party in a court of law, draft legal documents, or give legal advice.”

    I’m not advocating for any party or drafting legal documents or giving legal advice. I’m simply observing various laws and seeing trends as well as inquiring as to what type of laws our more conservative Orthodox bloggers would like to see passed (or repealed) and why. This isn’t theorizing.

    But I will take a look at your references. Promise.

  12. It looks like McConnell’s books will be quite intriguing given a couple of his positions. He’s certainly not going to be predictable in the manner in which I had thought:

    McCONNELL ON THE REYNOLDS CASE AND POLYGAMY
    Senator Durbinâ?¦Now letâ??s go to the case of Reynolds v. the United States. Here we have a religion which practices polygamy, and a decision by the Court which says that that is against the criminal law of the State in which they are residing, and your writing in publication said that that case was wrongly decided.

    You asserted that the man involved, charged with polygamy, a crime in that State, â??asked only that the Government leave him and his wives alone.’â?? In fact, he was asking for a religious-based exemption from criminal law, was he not?

    Mr. McConnell. Yes, he was.

    Senator Durbin. And so the criminal law, at least from your point of view, in that case, should or should not have been applied to this man because of his religious belief in favor of polygamy?

    Mr. McConnell. Senator, it cannot be the case that everyâ??any provision that any legislature would put into the criminal law is necessarily going to be constitutional under the First Amendment. The United States Supreme Court has struck down any number of applications of criminal law as applied in particular First Amendment circumstances. So, in order to answer a question about criminal law, in general, you simply have to descend to specific cases.

    Senator Durbin. The issue of polygamy which came up in the Reynolds case, I thought you said earlier today that you believe that simply adhering to a religious belief does not exempt you from obeying the laws of the land, particularly its criminal laws. And yet in one of your writings and what it would mean to have a First Amendment, you talk about this Reynolds v. United States case, in which a Mormon unsuccessfully asserted the right to marry multiple wives in accordance with the dictates of his religion. The Supreme Court unanimously rejected the claim.

    Then you go on to say most interestingly, â??Since many of us believe the Reynolds case was wrongly decided, even if Reynolds had won, a victory would not suggest the State is required to change the contours of its marriage laws.’â?? You conclude by saying of the defendant, the criminal defendant, â??He only asked that the Government leave him and his wives alone.’â??

    Square this with me. Tell me how the criminal laws will apply, even if they are not consistent with a personâ??s religious beliefs and you can conclude that the decision in Reynolds was wrongly decided.

    Mr. McConnell. Senator, for well over 100 years, the Supreme Court has grappled with this question. Reynolds was the first case in the Supreme Court raising the question. There have been a numberâ??the Smith case was quite recent. Many of those involve criminal laws. The rule has never been that religious views trump the criminal law, but the rule also has never been that there are no criminal laws which are unconstitutional under the First Amendment.

    Some criminal laws are unconstitutional under the First Amendment. For example, had your mother been prosecuted for the crime of carrying that prayer book, she would have had, under our system of freedom of religion, she would have had a trump. She would have been able to say, â??No, itâ??s unconstitutional for the Government to do that to me.’â??

    Senator Durbin. So was this law unconstitutional, the law banning polygamy?

    Mr. McConnell Itâ??s an extremely common view among legal academics that the law in Reynolds was, in fact, unconstitutional. Iâ??ve actually gone back and forth on that. I think that thereâ??s some justifications for it, but I donâ??t have any problem saying, ultimately, that it was unconstitutional.

    (end quote)

    I’m sure this is one of his more controversial positions, but that’s fine. I like someone who can offend the sensibilities of both the ACLU and the CWFA at the same time.

  13. JamesK, I’m aware of his opinion on this topic

    JamesK, you need to start with Republic of Virtue before you get to McConnell.

    I recommended McConnell as an expert on the religious issues in constitutional law. He is, in fact, one of the leading scholars in that area, probably THE leading scholar. If you read McConnell, which frankly, you are not equipped to do, McConnell can identify those issues, explain the various schools of thought on them, and discuss the philosophy and rationale for each position. If you and understood McConnell you would be very well informed.

    My beef with you is that you operate in an historical and legal vacuum. There is a very long legal history which has shaped the law we live under today. You tend to discuss issues as if this background did not exist, as if, these issues arose yesterday, which they did not.

    I promised you I wouldn’t hassle you in 2006 and I promised myself I wouldn’t argue law with you again.

    Do some reading.

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