Dear David,
You don’t like my tone; well, I don’t like yours either. Too much bluster and jeering and pre-emptive high-horse mounting; not enough content and close reading. For the record, I did not refer to you and other no-fault campaigners as “religious fanatics, abusers,” etc. Those charming epithets referred to rejected spouses who want the government to force their mates to remain married to them. Nor did I refer to you as “punitive”–that adjective referred to the policy of long waiting periods, like the five and seven years favored by your Institute of American Values colleagues Bill Galston and Maggie Gallagher. And why do you object to “punitive,” anyway? That’s the whole point of fault divorce, isn’t it? Fixing blame by conducting divorces as trials? As for “right wing”–you admire and support the Promise Keepers, an explicitly male-supremacist Christian movement that is funded and organized by the religious right; your Institute of American Values has received hundreds of thousands of dollars from the extremely conservative Bradley and JM foundations. If memory serves, on the radio show Bridges, where you certainly did not object to being interviewed as a conservative (I was the liberal) you told the host that denying welfare to young single mothers would do more to help poor children than anything you could think of. That all sounds pretty right wing to me–again, I don’t see why you object to the term, which is not an insult but a description. As for “narrow” and “moralistic,” I applied those words to the vision of marriage put forward by conservative divorce reformers, not to those people themselves, who might well be, in their personal lives, perfectly delightful.
You claim that “scholars” find that in four out of five cases, only one partner wants the divorce. There’s a lot of wiggle room in “wants”–wishes things had never reached this state? Wishes one was still loved? Wishes to bury one’s head under a pillow? I’m sure “scholars” could “find” that most people don’t “want” all sorts of things they nonetheless accept realistically. And should! In any case, the fault option in divorce exists in 10 states, including our own, New York, where it has not resulted in lower divorce rates. So what is it that you like about it?
You say that you understand people do not leave marriages “for no reason,” and deny that anyone you know would say otherwise. How about your colleague Maggie Gallagher? (Unilateral no-fault divorce “allows one partner to dissolve a marriage at any time, for any reason, or for no reason at all.” Sept. 16, the HoustonChronicle). Admit it: Integral to your ideas is the notion that people leave on a whim; otherwise, why support measures intended to slow them down or even stop them? In any case, as you know, fault divorce is not about making one spouse explain himself or herself to the other. It’s about pinning onto your spouse one of a handful of legally actionable causes for marital breakdown: infidelity, physical abuse, mental illness, a significant jail term (three years, Maggie G. suggests!), etc. Being belittled, bullied, humiliated in public (or private), ignored, sexually deprived, treated coldly and without sympathy, or denied an equal voice in decisions affecting your life (like where you’re going to live, how money is spent, how the children are raised) are not legal reasons. (Nor do the legal reasons count unless you can prove it–i.e., infidelity with witness and photos, documented abuse, psychiatric testimony supporting a mental-illness claim, etc., and don’t forget your spouse has a lawyer too–good luck!)
Did I say that no-fault divorce is good for battered women? Yes. It allows them to escape abusive mates without having to go through a lengthy and expensive trial that they might not even win (the batterer can countersue, the judge might not find the abuse sufficiently severe, etc.). Did I say that the existence of no-fault divorce has abolished domestic violence, as you claim to believe I think? Of course not. Domestic violence requires no marriage license: Hedda Nussbaum’s case has nothing to do with divorce. Nicole Brown Simpson’s murder (if you think O.J. did it) shows that divorce does not deter all violent mates. But who said it did? Imagine, though, if Nicole had had to prove O.J.’s beatings in order to free herself from him. We saw how sympathetic the Los Angeles justice system was to her situation!
You say our underlying disagreement is that I think divorce is always the product of true misery, and you think that it’s often “a temptation” and that its ready availability causes people to give up hope too soon. It is hard to see how either of us can know the answer: My idea of true misery might be your idea of “good enough,” just as one spouse might feel comfortable with a lack of intimacy or a level of conflict that drives the other one round the bend. (Correct me if I’m misremembering this, but I think I recall you saying somewhere that people’s marital expectations were just too high, and that 80 percent of marriages were “good enough”–which I thought was a remarkable bit of telepathy on your part.) In general, I do think people regard divorce as a very serious step, especially when there are children (I know my ex-husband and I did). Marital therapy is, after all, a huge industry. I know many spouses who accepted many sufferings–years without sex, for instance–in order to stay together. Are there couples who could have improved their marriage instead of ending it? Very likely: People sometimes make mistakes.
The real question, in my view, is whether the government should apply its considerable coercive powers in these very intimate matters, against the will of one partner (or, yes, both–you surely know that some fault advocates oppose no-fault even when both partners want to split up). Should the government enable one partner to force the other to remain in the relationship, absent legal fault? Or should it decide that in this area of private life as in others, grown-up men and women should make their own decisions?
You seem to think that my willingness to let them do so is “fatalism.” Yet nowhere do you put forward ANY evidence that proves that making divorce harder helps troubled marriages weather their difficulties and come out in a good place. You simply hold out the hope that an unknowable percent of couples–10 percent or 20 percent–will, if put through a series of burdensome requirements, rekindle their flame–and never mind the (even according to you) much larger percentage such requirements fail to benefit, or even harm. Nor do you refute (as opposed to sneer at) my evidence: citations from your own colleagues, the experience of states that have tried what you suggest. You mocked my expert who discounted court-ordered counseling. But where’s your evidence that it works?
I have to assume that if such evidence existed, you would cite it. Just as I have to assume that if you could refute my position, point for point, you wouldn’t have wasted valuable word space bloviating about my character.
