In 2003, the Massachusetts Supreme Court, in Goodridge v. Department of Public Health, defined marriage as a private and exclusive union, a sexual and affectionate relationship. The goal of the re-definition, which the court admitted to be a reversal of Massachusetts’s historic view of marriage law, was to make same-sex marriage legal. It is possible that other states will follow, and some already have.1 What brought society to the point that same-sex marriage is considered reasonable to so many that it is actually legal in some states? Many scholars asking this question have found their answer in the rise of no-fault divorce. The changing conception of marriage associated with no-fault divorce has made it increasingly difficult to defend traditional marriage today. Slippery slope arguments can be dangerous to make, but the slide from no-fault divorce to same-sex marriage is worthy of serious attention.2

Before the 1960s, the U.S. government granted divorces in cases of adultery, abandonment, and sometimes, cruelty. The faulty spouse could lose custody of the children or the right to alimony. Communities had expectations about how partners should treat each other. The marriage bond was more than a piece of paper that could be arbitrarily ripped to shreds; societal expectations, from church to courthouse, gave the marriage covenant teeth.3 But, according to longtime Hoover Institute Research Fellow Jennifer Roback Morse,4 this fault-based system came under intense criticism for being demeaning and unnecessary. It was demeaning because if a couple wanted a divorce, they would find a way to get one, even if that meant assigning blame where no blame was due. It was unnecessary because a change in divorce policy, some argued, would have no effect on the total number of divorces.5 Thus, came the no-fault divorce, where one party can unilaterally end the relationship with only a soulless marriage to blame. California enacted the first no-fault divorce law in 1969. In 1985, South Dakota was the last state to follow.6 In the meantime, the number of divorces rose from 708,000 in 1970 to approximately 1.2 million in 2004.7 Still, the rise of no-fault divorce did more than increase the quantity of divorces; it has forever changed the way America thinks about marriage. The redefinition of divorce made possible the redefinition of marriage as a private, temporary, and secular union. The following three changes in attitude to marriage, prepared by the rise of no-fault divorce, especially paved the way for same-sex marriage:

Marriage is about self-fulfillment: Louisiana State University law professor Katherine Shaw Spaht argues that a culture which embraces no-fault divorce endorses “the notion that an individual inherently possesses the freedom to pursue the purpose of life, which is personal self-fulfillment.”8 If a marriage is not “self-fulfilling,” the reasoning goes, no spouse should be required to stay. Likewise, if a same-sex or polygamous or incestuous marriage is self-fulfilling, no state should be able to say, “No.”

Marriage is a commercial venture: Lamenting de-moralized, no-fault divorce, John M. Hass, president of the National Catholic Bioethics Center, observes, “When the relationship is no longer profitable or satisfying, either partner can dissolve it at will.”9 If marriage is little more than an institution built around property, then the dissolution of marriage boils down to the division of goods. When divorce is distilled to property transfer, it does not take long for the sanctity of marriage to be degraded right along with it.

Marriage is a “temporary association of individuals”: No-fault divorce has helped make marriage temporary (most who marry will divorce) and private—every individual has the right, as Morse puts it, “to break up smoothly and cleanly and go about their lives.”10 This emphasis on the “right” to break up at will plays right into the hands of those who advocate same-sex marriage. The “right” to break up at will accords, after all, with the “right” to marry whom one will, when one will.

So it is not outlandish when Jennifer Morse says, “[S]ame-sex marriage is the end of the trend that no-fault divorce began.”11 Once the sense of moral and spiritual substance is stripped away from marriage, then who can presume to draw restricting lines?
 
Footnotes:
 
1  As of early 2009, Massachusetts and Connecticut both issue marriage licenses to same-sex couples. For an overview of the views of different states on these issues, see “Same Sex Marriage, Civil Unions and Domestic Partnerships,” National Conference of State Legislatures Website, http://www.ncsl.org/programs/cyf/samesex.htm (accessed March 17, 2009).
 
2  Slippery slope arguments are themselves slippery, for they can be easily constructed in conflicting directions. For instance, one could claim that the success of Mel Gibson’s The Passion of the Christ is unfortunate since it encourages Hollywood to make more religious films, which the studios will inevitably bungle, creating more spiritual confusion than ever before. This scenario stands in stark contrast to the happy one which predicts the emergence of more gratifying biblical films now that the producers have seen there is an audience for such. So how does one resolve this dilemma? By taking care to demonstrate the likelihood of each moment of the slide; no-fault divorce provides a good example, since the resultant slide in the status of marriage has been both predictable and precipitous. Furthermore, it is fair to suggest that same-sex marriage, polygamy, and incestuous marriage lie on that same slope, for “no-fault” thinking implies that there is no real moral principle at work in marriage to proscribe them.
 
3  For a brief overview of the history of divorce in America see Katherine Shaw Spaht, “The Current Crisis in Marriage Law,” in The Meaning of Marriage: Family, State, Market, and Morals, eds. Robert T. George and Jean Bethke Elshtain (Dallas: Spence Publishing Company, 2006), 215-221.
 
4  “Jennifer Roback Morse,” Hoover Institution Website, http://www.hoover.org/bios/morse.html (accessed July 31, 2006).
 
5  Jennifer Roback Morse, “Why Unilateral Divorce Has No Place in a Free Society,” in The Meaning of Marriage, 89-90.
 
6  John M. Haas, “The Contemporary World,” in Christian Marriage: A Historical Study, ed. Glenn W. Olsen (New York: The Crossroad Publishing Company, 2001), 336. Nancy F. Cott clarified, “California first adopted ‘no-fault’ divorce in 1969 and within four years at least thirty-six states had made it an option. By 1985 every state had fallen into step, not always under the rubric of ‘no-fault’ but offering essentially the same thing, that a couple who had proven incompatible could end their marriage.” Public Vows: A History of Marriage and the Nation (Cambridge: Harvard University Press, 2000), 205.
 
7  Haas, “The Contemporary World,” 336. See also “National Vital Statistics and Reports,” published by the Centers for Disease Control, vol. 53, 21 (June 28, 2005): http://www.cdc.gov/nchs/data/nvsr/nvsr53/nvsr53_21.pdf. (accessed July 10, 2006).
 
8  Spaht, “The Current Crisis in Marriage Law,” in The Meaning of Marriage, 221.
 
9  Haas, “The Contemporary World,” 336.
 
10  Morse, “Why Unilateral Divorce Has No Place in a Free Society,” 90.
 
11  Ibid., 74.
 
   Related Articles
 
TOPIC OVERVIEW: “Mapping the Terrain—Divorce” unread
“Christian Marriages Do Last” unread
“The Graying of Divorce”
“‘What’s Mine Is Mine’: The Age of the Prenuptial Agreement”
“No-Fault’s Slippery Slope”
“Between Two Worlds—The Effects of Divorce on Children”
“Mainline Parishioners Are Waking Up to the Evils of Easy Divorce”
“Does Collaboration Make a Good Divorce?” unread
“An Excess of Annulments in the American Catholic Church” unread
 
 
 Kairos article

First Baptist Church of Perryville is located at 4800 West Pulaski Hwy, Perryville, MD, 1 and 1/2 miles east of Rt. 222.