For the sake of the children: Recapturing the meaning of marriage

Notre Dame Law Review

Volumn 73, Issue 5, 1998, Pages 1547-1579

  Spaht, Katherine Shaw ^a  

^a Lousiana State University Law Center

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EID: 11844257680     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (173)

1. MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 106, 108 (1987) [hereinafter GLENDON, ABORTION AND DIVORCE].
2. Id. at 64-65. See also MARY ANN GLENDON, THE NEW FAMILY AND THE NEW PROPERTY 7 (1981) [hereinafter GLENDON, THE NEW FAMILY].
3. In Abortion and Divorce, Glendon wrote that: In the United States, the "no-fault" idea blended readily with the psychological jargon that already has such a strong influence on how Americans think about their personal relationships. It began to carry the suggestion that no one is ever to blame when a marriage ends: marriages just break down sometimes, people grow apart, and when this happens even parents have a right to pursue their own happiness. The no-fault terminology fit neatly into an increasingly popular mode of discourse in which values are treated as a matter of taste, feelings of guilt are regarded as unhealthy, and an individual's primary responsibility is assumed to be to himself. Above all, one is not supposed to be 'judgmental' about the behavior and opinions of others. As Bellah [Robert Bellah in Habits of the Heart] points out, the ideology of psychotherapy not only refuses to take a moral stand, it actively promotes distrust of "morality." GLENDON, ABORTION AND DIVORCE, supra note 1, at 107-08.
4. See Peter D. Kramer, Divorce and Our National Values, N.Y. TIMES, Aug. 29, 1997, at A23. We are rightly accustomed to viewing our self-reliance and independence as sources of some of our greatest strengths. . . . We are less conscious, however, of the dangers that Tocqueville warned us could flow from overemphasizing them. . . . [I] n the end, a people in a country where liberty has been severed from other republican virtues can paradoxically display both individualism and conformity, restlessness and huddling, rejection of authority and political impotence. GLENDON, ABORTION AND DIVORCE, supra note 1, at 119. See also GLENDON, THE NEW FAMILY, supra note 2, at 120, 138. When one considers how individualistic our society has become, what Maggie Gallagher says about the marriage commitment is true: "To dare to pledge our whole selves to a single love is the most remarkable thing most of us will ever do. With the abolition of marriage that last possibility for heroism has been taken from us." GALLACHER, supra note *, at 265. In the same vein, Barbara Dafoe Whitehead writes: "A voluntary pledge taken in abject ignorance of the future, imposing lifelong obligations and secured only by mutual affections, is an extravagant thing, impossible and unsustainable without the cultivation of certain beliefs, habits, and shared understandings about the nature and purpose of such voluntary bonds." BARBARA DAFOE WHITEHEAD, THE DIVORCE CULTURE, 194 (1997).
5. See Peter D. Kramer, Divorce and Our National Values, N.Y. TIMES, Aug. 29, 1997, at A23. We are rightly accustomed to viewing our self-reliance and independence as sources of some of our greatest strengths. . . . We are less conscious, however, of the dangers that Tocqueville warned us could flow from overemphasizing them. . . . [I] n the end, a people in a country where liberty has been severed from other republican virtues can paradoxically display both individualism and conformity, restlessness and huddling, rejection of authority and political impotence. GLENDON, ABORTION AND DIVORCE, supra note 1, at 119. See also GLENDON, THE NEW FAMILY, supra note 2, at 120, 138. When one considers how individualistic our society has become, what Maggie Gallagher says about the marriage commitment is true: "To dare to pledge our whole selves to a single love is the most remarkable thing most of us will ever do. With the abolition of marriage that last possibility for heroism has been taken from us." GALLACHER, supra note *, at 265. In the same vein, Barbara Dafoe Whitehead writes: "A voluntary pledge taken in abject ignorance of the future, imposing lifelong obligations and secured only by mutual affections, is an extravagant thing, impossible and unsustainable without the cultivation of certain beliefs, habits, and shared understandings about the nature and purpose of such voluntary bonds." BARBARA DAFOE WHITEHEAD, THE DIVORCE CULTURE, 194 (1997).
6. See Peter D. Kramer, Divorce and Our National Values, N.Y. TIMES, Aug. 29, 1997, at A23. We are rightly accustomed to viewing our self-reliance and independence as sources of some of our greatest strengths. . . . We are less conscious, however, of the dangers that Tocqueville warned us could flow from overemphasizing them. . . . [I] n the end, a people in a country where liberty has been severed from other republican virtues can paradoxically display both individualism and conformity, restlessness and huddling, rejection of authority and political impotence. GLENDON, ABORTION AND DIVORCE, supra note 1, at 119. See also GLENDON, THE NEW FAMILY, supra note 2, at 120, 138. When one considers how individualistic our society has become, what Maggie Gallagher says about the marriage commitment is true: "To dare to pledge our whole selves to a single love is the most remarkable thing most of us will ever do. With the abolition of marriage that last possibility for heroism has been taken from us." GALLACHER, supra note *, at 265. In the same vein, Barbara Dafoe Whitehead writes: "A voluntary pledge taken in abject ignorance of the future, imposing lifelong obligations and secured only by mutual affections, is an extravagant thing, impossible and unsustainable without the cultivation of certain beliefs, habits, and shared understandings about the nature and purpose of such voluntary bonds." BARBARA DAFOE WHITEHEAD, THE DIVORCE CULTURE, 194 (1997).
7. See Peter D. Kramer, Divorce and Our National Values, N.Y. TIMES, Aug. 29, 1997, at A23. We are rightly accustomed to viewing our self-reliance and independence as sources of some of our greatest strengths. . . . We are less conscious, however, of the dangers that Tocqueville warned us could flow from overemphasizing them. . . . [I] n the end, a people in a country where liberty has been severed from other republican virtues can paradoxically display both individualism and conformity, restlessness and huddling, rejection of authority and political impotence. GLENDON, ABORTION AND DIVORCE, supra note 1, at 119. See also GLENDON, THE NEW FAMILY, supra note 2, at 120, 138. When one considers how individualistic our society has become, what Maggie Gallagher says about the marriage commitment is true: "To dare to pledge our whole selves to a single love is the most remarkable thing most of us will ever do. With the abolition of marriage that last possibility for heroism has been taken from us." GALLACHER, supra note *, at 265. In the same vein, Barbara Dafoe Whitehead writes: "A voluntary pledge taken in abject ignorance of the future, imposing lifelong obligations and secured only by mutual affections, is an extravagant thing, impossible and unsustainable without the cultivation of certain beliefs, habits, and shared understandings about the nature and purpose of such voluntary bonds." BARBARA DAFOE WHITEHEAD, THE DIVORCE CULTURE, 194 (1997).
8. In Abortion and Divorce, Glendon wrote that: It seems to have been a legal coincidence that caused the move to break-down grounds to be translated back into ordinary language as "no-fault" divorce. . . . Once it ["no-fault"] was established in tort law, it was practically inevitable that the "no-fault" label should then migrate to the new divorce law, where proposed legal changes were similarly designed to eliminate litigation over issues of fault. GLENDON, ABORTION AND DIVORCE, supra note 1, at 79-80.
9. "Discontent with fault-based divorce seems to have been felt more acutely by mental-health professionals and academics than by the citizenry in general." Id. at 66.
10. Id. at 108.
11. For a sampling of proposals to address the increasingly disturbing prevalence of divorce, see, e.g., DAVID BLANKENHORN, FATHERLESS AMERICA (1995); GALLAGHER, supra note *; GLENDON, ABORTION AND DIVORCE, supra note 1; GLENN S. STANTON, WHY MARRIAGE MATTERS: REASONS TO BELIEVE IN MARRIAGE IN POST-MODERN SOCIETY (1997); WHITEHEAD, supra note 4; Maggie Gallagher & David Blankenhorn, Family Feud, in THE AMERICAN PROSPECT 12 (1997); Allen M. Parkman, Reform of the Divorce Provisions of the Marriage Contract, 8 BYU J. PUB. L. 91 (1993); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990); Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. REV. 79; Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45 (1981). Even His Holiness, Pope John Paul II, has had occasion to describe the battle in the following terms: At a moment in history in which the family is the object of numerous forces that seek to destroy it or in some way to deform it, and aware that the well-being of society and her own good are intimately tied to the good of the family, the Church perceives in a more urgent and compelling way her mission of proclaiming to all people the plan of God for marriage and the family, ensuring their full vitality and human and Christian development, and thus contributing to the renewal of society and of the People of God. APOSTOLIC EXHORTATION OF JOHN PAUL II: THE ROLE OF THE CHRISTIAN FAMILY IN THE MODERN WORLD (1994). A solid case can be made that the baby-boom generation, coming from the strong families of the 1950s, took the family for granted. To this generation, self-expression and self-fulfillment were the pressing values of the age - at least in their years of prolonged youth. To their children, however, often battle scarred from family turmoil, the world looks quite different. As many national studies - as well as the sentiments of my students - have indicated, the children of divorce, although their statistical chances of a successful marriage may not be so great, are outspokenly supportive of the importance of marital permanence and strong divorce-free families . . . . It may be no coincidence that we are seeing the rise of a new familism just thirty years after the momentous cultural changes of the 1960's. David Popenoe, Fostering the New Familism: A Goal For America, RESPONSIVE COMMUNITY, Fall 1992, at 33-34 (emphasis added).
12. For a sampling of proposals to address the increasingly disturbing prevalence of divorce, see, e.g., DAVID BLANKENHORN, FATHERLESS AMERICA (1995); GALLAGHER, supra note *; GLENDON, ABORTION AND DIVORCE, supra note 1; GLENN S. STANTON, WHY MARRIAGE MATTERS: REASONS TO BELIEVE IN MARRIAGE IN POST-MODERN SOCIETY (1997); WHITEHEAD, supra note 4; Maggie Gallagher & David Blankenhorn, Family Feud, in THE AMERICAN PROSPECT 12 (1997); Allen M. Parkman, Reform of the Divorce Provisions of the Marriage Contract, 8 BYU J. PUB. L. 91 (1993); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990); Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. REV. 79; Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45 (1981). Even His Holiness, Pope John Paul II, has had occasion to describe the battle in the following terms: At a moment in history in which the family is the object of numerous forces that seek to destroy it or in some way to deform it, and aware that the well-being of society and her own good are intimately tied to the good of the family, the Church perceives in a more urgent and compelling way her mission of proclaiming to all people the plan of God for marriage and the family, ensuring their full vitality and human and Christian development, and thus contributing to the renewal of society and of the People of God. APOSTOLIC EXHORTATION OF JOHN PAUL II: THE ROLE OF THE CHRISTIAN FAMILY IN THE MODERN WORLD (1994). A solid case can be made that the baby-boom generation, coming from the strong families of the 1950s, took the family for granted. To this generation, self-expression and self-fulfillment were the pressing values of the age - at least in their years of prolonged youth. To their children, however, often battle scarred from family turmoil, the world looks quite different. As many national studies - as well as the sentiments of my students - have indicated, the children of divorce, although their statistical chances of a successful marriage may not be so great, are outspokenly supportive of the importance of marital permanence and strong divorce-free families . . . . It may be no coincidence that we are seeing the rise of a new familism just thirty years after the momentous cultural changes of the 1960's. David Popenoe, Fostering the New Familism: A Goal For America, RESPONSIVE COMMUNITY, Fall 1992, at 33-34 (emphasis added).
13. For a sampling of proposals to address the increasingly disturbing prevalence of divorce, see, e.g., DAVID BLANKENHORN, FATHERLESS AMERICA (1995); GALLAGHER, supra note *; GLENDON, ABORTION AND DIVORCE, supra note 1; GLENN S. STANTON, WHY MARRIAGE MATTERS: REASONS TO BELIEVE IN MARRIAGE IN POST-MODERN SOCIETY (1997); WHITEHEAD, supra note 4; Maggie Gallagher & David Blankenhorn, Family Feud, in THE AMERICAN PROSPECT 12 (1997); Allen M. Parkman, Reform of the Divorce Provisions of the Marriage Contract, 8 BYU J. PUB. L. 91 (1993); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990); Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. REV. 79; Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45 (1981). Even His Holiness, Pope John Paul II, has had occasion to describe the battle in the following terms: At a moment in history in which the family is the object of numerous forces that seek to destroy it or in some way to deform it, and aware that the well-being of society and her own good are intimately tied to the good of the family, the Church perceives in a more urgent and compelling way her mission of proclaiming to all people the plan of God for marriage and the family, ensuring their full vitality and human and Christian development, and thus contributing to the renewal of society and of the People of God. APOSTOLIC EXHORTATION OF JOHN PAUL II: THE ROLE OF THE CHRISTIAN FAMILY IN THE MODERN WORLD (1994). A solid case can be made that the baby-boom generation, coming from the strong families of the 1950s, took the family for granted. To this generation, self-expression and self-fulfillment were the pressing values of the age - at least in their years of prolonged youth. To their children, however, often battle scarred from family turmoil, the world looks quite different. As many national studies - as well as the sentiments of my students - have indicated, the children of divorce, although their statistical chances of a successful marriage may not be so great, are outspokenly supportive of the importance of marital permanence and strong divorce-free families . . . . It may be no coincidence that we are seeing the rise of a new familism just thirty years after the momentous cultural changes of the 1960's. David Popenoe, Fostering the New Familism: A Goal For America, RESPONSIVE COMMUNITY, Fall 1992, at 33-34 (emphasis added).
14. For a sampling of proposals to address the increasingly disturbing prevalence of divorce, see, e.g., DAVID BLANKENHORN, FATHERLESS AMERICA (1995); GALLAGHER, supra note *; GLENDON, ABORTION AND DIVORCE, supra note 1; GLENN S. STANTON, WHY MARRIAGE MATTERS: REASONS TO BELIEVE IN MARRIAGE IN POST-MODERN SOCIETY (1997); WHITEHEAD, supra note 4; Maggie Gallagher & David Blankenhorn, Family Feud, in THE AMERICAN PROSPECT 12 (1997); Allen M. Parkman, Reform of the Divorce Provisions of the Marriage Contract, 8 BYU J. PUB. L. 91 (1993); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990); Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. REV. 79; Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45 (1981). Even His Holiness, Pope John Paul II, has had occasion to describe the battle in the following terms: At a moment in history in which the family is the object of numerous forces that seek to destroy it or in some way to deform it, and aware that the well-being of society and her own good are intimately tied to the good of the family, the Church perceives in a more urgent and compelling way her mission of proclaiming to all people the plan of God for marriage and the family, ensuring their full vitality and human and Christian development, and thus contributing to the renewal of society and of the People of God. APOSTOLIC EXHORTATION OF JOHN PAUL II: THE ROLE OF THE CHRISTIAN FAMILY IN THE MODERN WORLD (1994). A solid case can be made that the baby-boom generation, coming from the strong families of the 1950s, took the family for granted. To this generation, self-expression and self-fulfillment were the pressing values of the age - at least in their years of prolonged youth. To their children, however, often battle scarred from family turmoil, the world looks quite different. As many national studies - as well as the sentiments of my students - have indicated, the children of divorce, although their statistical chances of a successful marriage may not be so great, are outspokenly supportive of the importance of marital permanence and strong divorce-free families . . . . It may be no coincidence that we are seeing the rise of a new familism just thirty years after the momentous cultural changes of the 1960's. David Popenoe, Fostering the New Familism: A Goal For America, RESPONSIVE COMMUNITY, Fall 1992, at 33-34 (emphasis added).
15. For a sampling of proposals to address the increasingly disturbing prevalence of divorce, see, e.g., DAVID BLANKENHORN, FATHERLESS AMERICA (1995); GALLAGHER, supra note *; GLENDON, ABORTION AND DIVORCE, supra note 1; GLENN S. STANTON, WHY MARRIAGE MATTERS: REASONS TO BELIEVE IN MARRIAGE IN POST-MODERN SOCIETY (1997); WHITEHEAD, supra note 4; Maggie Gallagher & David Blankenhorn, Family Feud, in THE AMERICAN PROSPECT 12 (1997); Allen M. Parkman, Reform of the Divorce Provisions of the Marriage Contract, 8 BYU J. PUB. L. 91 (1993); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990); Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. REV. 79; Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45 (1981). Even His Holiness, Pope John Paul II, has had occasion to describe the battle in the following terms: At a moment in history in which the family is the object of numerous forces that seek to destroy it or in some way to deform it, and aware that the well-being of society and her own good are intimately tied to the good of the family, the Church perceives in a more urgent and compelling way her mission of proclaiming to all people the plan of God for marriage and the family, ensuring their full vitality and human and Christian development, and thus contributing to the renewal of society and of the People of God. APOSTOLIC EXHORTATION OF JOHN PAUL II: THE ROLE OF THE CHRISTIAN FAMILY IN THE MODERN WORLD (1994). A solid case can be made that the baby-boom generation, coming from the strong families of the 1950s, took the family for granted. To this generation, self-expression and self-fulfillment were the pressing values of the age - at least in their years of prolonged youth. To their children, however, often battle scarred from family turmoil, the world looks quite different. As many national studies - as well as the sentiments of my students - have indicated, the children of divorce, although their statistical chances of a successful marriage may not be so great, are outspokenly supportive of the importance of marital permanence and strong divorce-free families . . . . It may be no coincidence that we are seeing the rise of a new familism just thirty years after the momentous cultural changes of the 1960's. David Popenoe, Fostering the New Familism: A Goal For America, RESPONSIVE COMMUNITY, Fall 1992, at 33-34 (emphasis added).
16. For a sampling of proposals to address the increasingly disturbing prevalence of divorce, see, e.g., DAVID BLANKENHORN, FATHERLESS AMERICA (1995); GALLAGHER, supra note *; GLENDON, ABORTION AND DIVORCE, supra note 1; GLENN S. STANTON, WHY MARRIAGE MATTERS: REASONS TO BELIEVE IN MARRIAGE IN POST-MODERN SOCIETY (1997); WHITEHEAD, supra note 4; Maggie Gallagher & David Blankenhorn, Family Feud, in THE AMERICAN PROSPECT 12 (1997); Allen M. Parkman, Reform of the Divorce Provisions of the Marriage Contract, 8 BYU J. PUB. L. 91 (1993); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990); Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. REV. 79; Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45 (1981). Even His Holiness, Pope John Paul II, has had occasion to describe the battle in the following terms: At a moment in history in which the family is the object of numerous forces that seek to destroy it or in some way to deform it, and aware that the well-being of society and her own good are intimately tied to the good of the family, the Church perceives in a more urgent and compelling way her mission of proclaiming to all people the plan of God for marriage and the family, ensuring their full vitality and human and Christian development, and thus contributing to the renewal of society and of the People of God. APOSTOLIC EXHORTATION OF JOHN PAUL II: THE ROLE OF THE CHRISTIAN FAMILY IN THE MODERN WORLD (1994). A solid case can be made that the baby-boom generation, coming from the strong families of the 1950s, took the family for granted. To this generation, self-expression and self-fulfillment were the pressing values of the age - at least in their years of prolonged youth. To their children, however, often battle scarred from family turmoil, the world looks quite different. As many national studies - as well as the sentiments of my students - have indicated, the children of divorce, although their statistical chances of a successful marriage may not be so great, are outspokenly supportive of the importance of marital permanence and strong divorce-free families . . . . It may be no coincidence that we are seeing the rise of a new familism just thirty years after the momentous cultural changes of the 1960's. David Popenoe, Fostering the New Familism: A Goal For America, RESPONSIVE COMMUNITY, Fall 1992, at 33-34 (emphasis added).
17. For a sampling of proposals to address the increasingly disturbing prevalence of divorce, see, e.g., DAVID BLANKENHORN, FATHERLESS AMERICA (1995); GALLAGHER, supra note *; GLENDON, ABORTION AND DIVORCE, supra note 1; GLENN S. STANTON, WHY MARRIAGE MATTERS: REASONS TO BELIEVE IN MARRIAGE IN POST-MODERN SOCIETY (1997); WHITEHEAD, supra note 4; Maggie Gallagher & David Blankenhorn, Family Feud, in THE AMERICAN PROSPECT 12 (1997); Allen M. Parkman, Reform of the Divorce Provisions of the Marriage Contract, 8 BYU J. PUB. L. 91 (1993); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990); Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. REV. 79; Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45 (1981). Even His Holiness, Pope John Paul II, has had occasion to describe the battle in the following terms: At a moment in history in which the family is the object of numerous forces that seek to destroy it or in some way to deform it, and aware that the well-being of society and her own good are intimately tied to the good of the family, the Church perceives in a more urgent and compelling way her mission of proclaiming to all people the plan of God for marriage and the family, ensuring their full vitality and human and Christian development, and thus contributing to the renewal of society and of the People of God. APOSTOLIC EXHORTATION OF JOHN PAUL II: THE ROLE OF THE CHRISTIAN FAMILY IN THE MODERN WORLD (1994). A solid case can be made that the baby-boom generation, coming from the strong families of the 1950s, took the family for granted. To this generation, self-expression and self-fulfillment were the pressing values of the age - at least in their years of prolonged youth. To their children, however, often battle scarred from family turmoil, the world looks quite different. As many national studies - as well as the sentiments of my students - have indicated, the children of divorce, although their statistical chances of a successful marriage may not be so great, are outspokenly supportive of the importance of marital permanence and strong divorce-free families . . . . It may be no coincidence that we are seeing the rise of a new familism just thirty years after the momentous cultural changes of the 1960's. David Popenoe, Fostering the New Familism: A Goal For America, RESPONSIVE COMMUNITY, Fall 1992, at 33-34 (emphasis added).
18. For a sampling of proposals to address the increasingly disturbing prevalence of divorce, see, e.g., DAVID BLANKENHORN, FATHERLESS AMERICA (1995); GALLAGHER, supra note *; GLENDON, ABORTION AND DIVORCE, supra note 1; GLENN S. STANTON, WHY MARRIAGE MATTERS: REASONS TO BELIEVE IN MARRIAGE IN POST-MODERN SOCIETY (1997); WHITEHEAD, supra note 4; Maggie Gallagher & David Blankenhorn, Family Feud, in THE AMERICAN PROSPECT 12 (1997); Allen M. Parkman, Reform of the Divorce Provisions of the Marriage Contract, 8 BYU J. PUB. L. 91 (1993); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990); Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. REV. 79; Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45 (1981). Even His Holiness, Pope John Paul II, has had occasion to describe the battle in the following terms: At a moment in history in which the family is the object of numerous forces that seek to destroy it or in some way to deform it, and aware that the well-being of society and her own good are intimately tied to the good of the family, the Church perceives in a more urgent and compelling way her mission of proclaiming to all people the plan of God for marriage and the family, ensuring their full vitality and human and Christian development, and thus contributing to the renewal of society and of the People of God. APOSTOLIC EXHORTATION OF JOHN PAUL II: THE ROLE OF THE CHRISTIAN FAMILY IN THE MODERN WORLD (1994). A solid case can be made that the baby-boom generation, coming from the strong families of the 1950s, took the family for granted. To this generation, self-expression and self-fulfillment were the pressing values of the age - at least in their years of prolonged youth. To their children, however, often battle scarred from family turmoil, the world looks quite different. As many national studies - as well as the sentiments of my students - have indicated, the children of divorce, although their statistical chances of a successful marriage may not be so great, are outspokenly supportive of the importance of marital permanence and strong divorce-free families . . . . It may be no coincidence that we are seeing the rise of a new familism just thirty years after the momentous cultural changes of the 1960's. David Popenoe, Fostering the New Familism: A Goal For America, RESPONSIVE COMMUNITY, Fall 1992, at 33-34 (emphasis added).
19. For a sampling of proposals to address the increasingly disturbing prevalence of divorce, see, e.g., DAVID BLANKENHORN, FATHERLESS AMERICA (1995); GALLAGHER, supra note *; GLENDON, ABORTION AND DIVORCE, supra note 1; GLENN S. STANTON, WHY MARRIAGE MATTERS: REASONS TO BELIEVE IN MARRIAGE IN POST-MODERN SOCIETY (1997); WHITEHEAD, supra note 4; Maggie Gallagher & David Blankenhorn, Family Feud, in THE AMERICAN PROSPECT 12 (1997); Allen M. Parkman, Reform of the Divorce Provisions of the Marriage Contract, 8 BYU J. PUB. L. 91 (1993); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990); Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. REV. 79; Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45 (1981). Even His Holiness, Pope John Paul II, has had occasion to describe the battle in the following terms: At a moment in history in which the family is the object of numerous forces that seek to destroy it or in some way to deform it, and aware that the well-being of society and her own good are intimately tied to the good of the family, the Church perceives in a more urgent and compelling way her mission of proclaiming to all people the plan of God for marriage and the family, ensuring their full vitality and human and Christian development, and thus contributing to the renewal of society and of the People of God. APOSTOLIC EXHORTATION OF JOHN PAUL II: THE ROLE OF THE CHRISTIAN FAMILY IN THE MODERN WORLD (1994). A solid case can be made that the baby-boom generation, coming from the strong families of the 1950s, took the family for granted. To this generation, self-expression and self-fulfillment were the pressing values of the age - at least in their years of prolonged youth. To their children, however, often battle scarred from family turmoil, the world looks quite different. As many national studies - as well as the sentiments of my students - have indicated, the children of divorce, although their statistical chances of a successful marriage may not be so great, are outspokenly supportive of the importance of marital permanence and strong divorce-free families . . . . It may be no coincidence that we are seeing the rise of a new familism just thirty years after the momentous cultural changes of the 1960's. David Popenoe, Fostering the New Familism: A Goal For America, RESPONSIVE COMMUNITY, Fall 1992, at 33-34 (emphasis added).
20. For a sampling of proposals to address the increasingly disturbing prevalence of divorce, see, e.g., DAVID BLANKENHORN, FATHERLESS AMERICA (1995); GALLAGHER, supra note *; GLENDON, ABORTION AND DIVORCE, supra note 1; GLENN S. STANTON, WHY MARRIAGE MATTERS: REASONS TO BELIEVE IN MARRIAGE IN POST-MODERN SOCIETY (1997); WHITEHEAD, supra note 4; Maggie Gallagher & David Blankenhorn, Family Feud, in THE AMERICAN PROSPECT 12 (1997); Allen M. Parkman, Reform of the Divorce Provisions of the Marriage Contract, 8 BYU J. PUB. L. 91 (1993); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990); Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. REV. 79; Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45 (1981). Even His Holiness, Pope John Paul II, has had occasion to describe the battle in the following terms: At a moment in history in which the family is the object of numerous forces that seek to destroy it or in some way to deform it, and aware that the well-being of society and her own good are intimately tied to the good of the family, the Church perceives in a more urgent and compelling way her mission of proclaiming to all people the plan of God for marriage and the family, ensuring their full vitality and human and Christian development, and thus contributing to the renewal of society and of the People of God. APOSTOLIC EXHORTATION OF JOHN PAUL II: THE ROLE OF THE CHRISTIAN FAMILY IN THE MODERN WORLD (1994). A solid case can be made that the baby-boom generation, coming from the strong families of the 1950s, took the family for granted. To this generation, self-expression and self-fulfillment were the pressing values of the age - at least in their years of prolonged youth. To their children, however, often battle scarred from family turmoil, the world looks quite different. As many national studies - as well as the sentiments of my students - have indicated, the children of divorce, although their statistical chances of a successful marriage may not be so great, are outspokenly supportive of the importance of marital permanence and strong divorce-free families . . . . It may be no coincidence that we are seeing the rise of a new familism just thirty years after the momentous cultural changes of the 1960's. David Popenoe, Fostering the New Familism: A Goal For America, RESPONSIVE COMMUNITY, Fall 1992, at 33-34 (emphasis added).
21. GALLAGHER, supra note *, at 4.
22. Sociologist Daniel Yankelovich connected economics with the health of the family as follows: There exists a deeply intuitive sense that the success of a market-based economy depends on a highly developed social morality - trustworthiness, honesty, concern for future generations, an ethic of service to others, a humane society that takes care of those in need, frugality instead of greed, high standards of quality, and concern for community. These economically desirable social values, in turn, are seen as rooted in family values. Thus the link in public thinking between a healthy family and a robust economy, though indirect, is clear and firm. Daniel Yankelovich, Foreign Policy After the Election, 71 FOREIGN AFF. 1, 3-4 (1992).
23. See Kramer, supra note 4.
24. Professor Mary Ann Glendon's series of books on law and the family: STATE, LAW AND FAMILY: FAMILY LAW IN TRANSITION IN THE UNITED STATES AND WESTERN EUROPE (1977); THE NEW FAMILY, supra note 2; ABORTION AND DIVORCE, supra note 1; THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE (1989); and to some extent RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991) [hereinafter, GLENDON, RIGHTS TALK], enhance the understanding of developments in the law regulating the family through a comparison of the law of various countries.
25. Professor Mary Ann Glendon's series of books on law and the family: STATE, LAW AND FAMILY: FAMILY LAW IN TRANSITION IN THE UNITED STATES AND WESTERN EUROPE (1977); THE NEW FAMILY, supra note 2; ABORTION AND DIVORCE, supra note 1; THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE (1989); and to some extent RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991) [hereinafter, GLENDON, RIGHTS TALK], enhance the understanding of developments in the law regulating the family through a comparison of the law of various countries.
26. Professor Mary Ann Glendon's series of books on law and the family: STATE, LAW AND FAMILY: FAMILY LAW IN TRANSITION IN THE UNITED STATES AND WESTERN EUROPE (1977); THE NEW FAMILY, supra note 2; ABORTION AND DIVORCE, supra note 1; THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE (1989); and to some extent RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991) [hereinafter, GLENDON, RIGHTS TALK], enhance the understanding of developments in the law regulating the family through a comparison of the law of various countries.
27. Professor Mary Ann Glendon's series of books on law and the family: STATE, LAW AND FAMILY: FAMILY LAW IN TRANSITION IN THE UNITED STATES AND WESTERN EUROPE (1977); THE NEW FAMILY, supra note 2; ABORTION AND DIVORCE, supra note 1; THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE (1989); and to some extent RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991) [hereinafter, GLENDON, RIGHTS TALK], enhance the understanding of developments in the law regulating the family through a comparison of the law of various countries.
28. Professor Mary Ann Glendon's series of books on law and the family: STATE, LAW AND FAMILY: FAMILY LAW IN TRANSITION IN THE UNITED STATES AND WESTERN EUROPE (1977); THE NEW FAMILY, supra note 2; ABORTION AND DIVORCE, supra note 1; THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE (1989); and to some extent RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991) [hereinafter, GLENDON, RIGHTS TALK], enhance the understanding of developments in the law regulating the family through a comparison of the law of various countries.
29. "For marriage to thrive, and perhaps even to survive, we need to recapture our vision of the undertaking, to reimagine it as worthy for its own sake." GALLAGHER, supra note *, at 264. A first step toward that goal [dismantling the divorce culture] will involve recapturing a sense of the purposes of marriage that extend beyond the self. . . . More centrally, the notion of protecting the essential properties of the self from incursions by another is antithetical to marital commitment in which one must desire and accept as a matter of faith the giving over of oneself to another. WHITEHEAD, supra note 4, at 193.
30. See Patrick F. Fagan et al., The Child Abuse Crisis: The Disintegration of Marriage, Family, and the American Community, BACKGROUNDER, June 3, 1997. The report compiled data drawn from the following studies: ANDREA J. SEDLAK & DIANE BROADHURST, U.S. DEP'T OF HEALTH AND HUMAN SERVICES, THE THIRD NATIONAL INCIDENCE STUDY OF CHILD ABUSE AND NEGLECT (1996), and ROBERT R. WHELAN, FAMILY EDUCATION TRUST, BROKEN HOMES & BATTERED CHILDREN: A STUDY OF THE RELATIONSHIP BETWEEN CHILD ABUSE AND FAMILY TYPE (1994). There is strong evidence from the British research that the structure of the family is related directly to the safety of mothers and children. The most dangerous place for a woman and her child is in an environment in which she is cohabiting with a boyfriend who is not the father of her children. The rate of child abuse may be as much as 33 times higher. Even cohabiting with the children's father may lead to a rate of abuse as much as 20 times higher. Marriage provides the safest environment for children. It therefore truly makes a difference in advancing the safety and well-being of America's children. Fagan et al., supra, at 14.
31. See Patrick F. Fagan et al., The Child Abuse Crisis: The Disintegration of Marriage, Family, and the American Community, BACKGROUNDER, June 3, 1997. The report compiled data drawn from the following studies: ANDREA J. SEDLAK & DIANE BROADHURST, U.S. DEP'T OF HEALTH AND HUMAN SERVICES, THE THIRD NATIONAL INCIDENCE STUDY OF CHILD ABUSE AND NEGLECT (1996), and ROBERT R. WHELAN, FAMILY EDUCATION TRUST, BROKEN HOMES & BATTERED CHILDREN: A STUDY OF THE RELATIONSHIP BETWEEN CHILD ABUSE AND FAMILY TYPE (1994). There is strong evidence from the British research that the structure of the family is related directly to the safety of mothers and children. The most dangerous place for a woman and her child is in an environment in which she is cohabiting with a boyfriend who is not the father of her children. The rate of child abuse may be as much as 33 times higher. Even cohabiting with the children's father may lead to a rate of abuse as much as 20 times higher. Marriage provides the safest environment for children. It therefore truly makes a difference in advancing the safety and well-being of America's children. Fagan et al., supra, at 14.
32. See Patrick F. Fagan et al., The Child Abuse Crisis: The Disintegration of Marriage, Family, and the American Community, BACKGROUNDER, June 3, 1997. The report compiled data drawn from the following studies: ANDREA J. SEDLAK & DIANE BROADHURST, U.S. DEP'T OF HEALTH AND HUMAN SERVICES, THE THIRD NATIONAL INCIDENCE STUDY OF CHILD ABUSE AND NEGLECT (1996), and ROBERT R. WHELAN, FAMILY EDUCATION TRUST, BROKEN HOMES & BATTERED CHILDREN: A STUDY OF THE RELATIONSHIP BETWEEN CHILD ABUSE AND FAMILY TYPE (1994). There is strong evidence from the British research that the structure of the family is related directly to the safety of mothers and children. The most dangerous place for a woman and her child is in an environment in which she is cohabiting with a boyfriend who is not the father of her children. The rate of child abuse may be as much as 33 times higher. Even cohabiting with the children's father may lead to a rate of abuse as much as 20 times higher. Marriage provides the safest environment for children. It therefore truly makes a difference in advancing the safety and well-being of America's children. Fagan et al., supra, at 14.
33. See SARA MCLANAHAN & GARY SANDEFUR, GROWING UP WITH A SINGLE-PARENT: WHAT HURTS, WHAT HELPS (1994).
34. STANTON, supra note 8, at 105 (summarizing the findings of McLanahan and Sandefur and then quoting them as follows: "Regardless of which survey we look at, children from one-parent families are about twice as likely to drop out of school as children from two-parent families." MCLANAHAN & SANDEFUR, supra note 15, at 41).
35. McLANAHAN & SANDEFUR, supra note 15, at 48-49.
36. See STANTON, supra note 8, at 10 (summarizing McLanahan and Sandefur's findings).
37. See id. at 114.
38. "It is no exaggeration to say that a stable, two-parent family is an American child's best protection against poverty." KAMARCK & GALSTON, PROGRESSIVE POLICY INSTITUTE, PUTTING CHILDREN FIRST: A PROGRESSIVE FAMILY POLICY FOR THE 1990s 12 (1990).
39. DAVID T. ELLWOOD, POOR SUPPORT: POVERTY IN THE AMERICAN FAMILY 46 (1988).
40. STANTON, supra note 8, at 119. See David B. Larson, et al., The Costly Consequences of Divorce: Assessing the Clinical, Economic, and Public Health Impact of Marital Disruption in the United States 122, 132 (research-based seminar for National Institute for Healthcare Research, on file with author).
41. MCLANAHAN & SANDEFUR, supra note 15, at 38. Their conclusions about the likelihood of abuse have been confirmed by a recent study in Britain referred to in Fagan et al., supra note 14.
42. GALLAGHER, supra note *, at 123.
43. See John Guidubaldi, Differences in Children's Divorce Adjustment across grade level and gender: A Report from NASP-Kent State Nationwide Project, in CHILDREN OF DIVORCE: EMPIRICAL PERSPECTIVES ON DIVORCE (Sharlene A. Wolchik & Paul Karoly eds., 1988); David Demo & Alan Acock, The Impact of Divorce on Children: An Assessment of Recent Evidence, 50 J. MARRIAGE & FAM. 619, 622 (1988).
44. See John Guidubaldi, Differences in Children's Divorce Adjustment across grade level and gender: A Report from NASP-Kent State Nationwide Project, in CHILDREN OF DIVORCE: EMPIRICAL PERSPECTIVES ON DIVORCE (Sharlene A. Wolchik & Paul Karoly eds., 1988); David Demo & Alan Acock, The Impact of Divorce on Children: An Assessment of Recent Evidence, 50 J. MARRIAGE & FAM. 619, 622 (1988).
45. Stanton's book, Why Marriage Matters, supra note 8, is one of the most recent of all the books written by authors who wish to emphasize the positive effects of marriage. Stanton compiles all of the sociological data to date on the detrimental effects of divorce. See id. Chapter 5, "Shattering the Myth: The Broken Promises of Divorce and Remarriage" at 123-58. See, e.g., D'Arcy Jenish, Can Kids Cope? Debating the Effect of Divorce on Children, MACLEAN'S, June 20, 1994, at 38; Jenifer Kunz, The Effects of Divorce on Children, in 2 FAMILY RESEARCH: A SIXTY-YEAR REVIEW, 1930-1990, 325 (Stephen Bahr ed., 1992).
46. Stanton's book, Why Marriage Matters, supra note 8, is one of the most recent of all the books written by authors who wish to emphasize the positive effects of marriage. Stanton compiles all of the sociological data to date on the detrimental effects of divorce. See id. Chapter 5, "Shattering the Myth: The Broken Promises of Divorce and Remarriage" at 123-58. See, e.g., D'Arcy Jenish, Can Kids Cope? Debating the Effect of Divorce on Children, MACLEAN'S, June 20, 1994, at 38; Jenifer Kunz, The Effects of Divorce on Children, in 2 FAMILY RESEARCH: A SIXTY-YEAR REVIEW, 1930-1990, 325 (Stephen Bahr ed., 1992).
47. See LENORE J. WEITZMAN, THE DIVORCE REVOLUTION: THE UNINTENDED SOCIAL AND ECONOMIC CONSEQUENCES ON WOMEN AND CHILDREN IN AMERICA (1987). Despite disagreements about Weitzman's calculations of the disparity between post-divorce income and standard of living for men and for women and children, few dispute that women and children suffer more economic hardship than men after divorce.
48. Mary Ann Glendon, Family Law Reform in the 1980s, 44 LA. L. REV. 1553, 1559 (1984). See also GLENDON, ABORTION AND DIVORCE, supra note 1.
49. Mary Ann Glendon, Family Law Reform in the 1980s, 44 LA. L. REV. 1553, 1559 (1984). See also GLENDON, ABORTION AND DIVORCE, supra note 1.
50. See Younger, supra note 8. See also S. 160, Reg. Sess. (La. 1997), which amended LA. CIV. CODE ANN. arts. 102 and 103 (West 1993) and added a new article to prohibit couples with children under the age of 18 from obtaining a divorce without proof of fault. The bill failed to pass the Senate floor on a vote of twelve to twenty-five.
51. Whitehead, supra note *. Much that appeared in that article now is incorporated in her book, THE DIVORCE CULTURE, supra note 4. She discusses some of her conclusions in an excellent PBS video, Videotape: Children of Divorce (on file with the Public Broadcasting Service), a part of the National Desk Series. Judith Wallerstein appears in this video, too, along with children of divorce interviewed on camera.
52. See Arland Thornton, Changing Views Towards Family Issues in the United States, 51 J. OF MARRIAGE AND FAMILY 873, 875 (1989). See also CONSTANCE AHRONS, THE GOOD DIVORCE (1985). The title of this book alone makes the case for divorce as a potential positive personal experience. In fact, one of Stanton's chapters is entitled "Only a Piece of Paper: The Benefits of Marriage for Adults." STANTON, supra note 8, at 71. In that chapter, Stanton argues that first-time married adults, when compared to single, divorced or remarried adults, fare better in virtually every measurement of the quality of life. See also JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, THE GOOD MARRIAGE: How AND WHY LOVE LASTS (1995) (isolating the characteristics and qualities of a married couple that lead to a rich and long marriage). Interestingly, Wallerstein wrote this book with Blakeslee after reporting that eighty percent of the women and fifty percent of the men reported feeling more content with the quality of their lives ten years after divorce. JUDITH S. WALLERSTEIN, SECOND CHANCES: MEN, WOMEN, AND CHILDREN A DECADE AFTER DIVORCE (1989).
53. See Arland Thornton, Changing Views Towards Family Issues in the United States, 51 J. OF MARRIAGE AND FAMILY 873, 875 (1989). See also CONSTANCE AHRONS, THE GOOD DIVORCE (1985). The title of this book alone makes the case for divorce as a potential positive personal experience. In fact, one of Stanton's chapters is entitled "Only a Piece of Paper: The Benefits of Marriage for Adults." STANTON, supra note 8, at 71. In that chapter, Stanton argues that first-time married adults, when compared to single, divorced or remarried adults, fare better in virtually every measurement of the quality of life. See also JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, THE GOOD MARRIAGE: How AND WHY LOVE LASTS (1995) (isolating the characteristics and qualities of a married couple that lead to a rich and long marriage). Interestingly, Wallerstein wrote this book with Blakeslee after reporting that eighty percent of the women and fifty percent of the men reported feeling more content with the quality of their lives ten years after divorce. JUDITH S. WALLERSTEIN, SECOND CHANCES: MEN, WOMEN, AND CHILDREN A DECADE AFTER DIVORCE (1989).
54. See Arland Thornton, Changing Views Towards Family Issues in the United States, 51 J. OF MARRIAGE AND FAMILY 873, 875 (1989). See also CONSTANCE AHRONS, THE GOOD DIVORCE (1985). The title of this book alone makes the case for divorce as a potential positive personal experience. In fact, one of Stanton's chapters is entitled "Only a Piece of Paper: The Benefits of Marriage for Adults." STANTON, supra note 8, at 71. In that chapter, Stanton argues that first-time married adults, when compared to single, divorced or remarried adults, fare better in virtually every measurement of the quality of life. See also JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, THE GOOD MARRIAGE: How AND WHY LOVE LASTS (1995) (isolating the characteristics and qualities of a married couple that lead to a rich and long marriage). Interestingly, Wallerstein wrote this book with Blakeslee after reporting that eighty percent of the women and fifty percent of the men reported feeling more content with the quality of their lives ten years after divorce. JUDITH S. WALLERSTEIN, SECOND CHANCES: MEN, WOMEN, AND CHILDREN A DECADE AFTER DIVORCE (1989).
55. See Arland Thornton, Changing Views Towards Family Issues in the United States, 51 J. OF MARRIAGE AND FAMILY 873, 875 (1989). See also CONSTANCE AHRONS, THE GOOD DIVORCE (1985). The title of this book alone makes the case for divorce as a potential positive personal experience. In fact, one of Stanton's chapters is entitled "Only a Piece of Paper: The Benefits of Marriage for Adults." STANTON, supra note 8, at 71. In that chapter, Stanton argues that first-time married adults, when compared to single, divorced or remarried adults, fare better in virtually every measurement of the quality of life. See also JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, THE GOOD MARRIAGE: How AND WHY LOVE LASTS (1995) (isolating the characteristics and qualities of a married couple that lead to a rich and long marriage). Interestingly, Wallerstein wrote this book with Blakeslee after reporting that eighty percent of the women and fifty percent of the men reported feeling more content with the quality of their lives ten years after divorce. JUDITH S. WALLERSTEIN, SECOND CHANCES: MEN, WOMEN, AND CHILDREN A DECADE AFTER DIVORCE (1989).
56. WALLERSTEIN & BLAKESLEE, supra note 31, at 11.
57. See JUDITH S. WALLERSTEIN & JOAN BERLIN KELLY, SURVIVING THE BREAKUP: How CHILDREN AND PARENTS COPE WITH DIVORCE (1980); WALLERSTEIN & BLAKESLEE, supra note 31 (publishing the results of Wallerstein's interviews with these children at earlier points in time after their parents' divorce).
58. Judith S. Wallerstein & Julia Lewis, The Long-Term Impact of Divorce on Children: A First Report from a 25-Year Study, Presention at the Second World Congress of Family Law and the Rights of Children and Youth in San Francisco, California (June 2-7, 1997) (copy on file with author).
59. See id. The study sample included face-to-face interviews with 130 children and both parents. The children came from middle-class northern California homes. Their parents were well-educated.
60. See STANTON, supra note 8, at 123-58, for the results of those studies.
61. Wade E. Horn, Strong Case for Staying Together Despite Discord, WASHINGTON TIMES, Jan. 6, 1998, at E2. The first study was conducted by Rex Forehand and others, Rex Forehand et al., Is Adolescent Adjustment Following Parental Divorce a Function of Predivorce Adjustment?, 25 J. ABNORMAL CHILD PSYCHOL. 157 (1997). The second study is contained in PAUL R. AMATO & ALAN BOOTH, A GENERATION AT RISK: GROWING UP IN AN ERA OF FAMILY UPHEAVAL (1997 ). The third study appears in RONALD L. SIMONS, UNDERSTANDING DIFFERENCES BETWEEN DIVORCED AND INTACT FAMILIES: STRESS INTERACTION AND CHILD OUTCOME 203-05 (1996).
62. Wade E. Horn, Strong Case for Staying Together Despite Discord, WASHINGTON TIMES, Jan. 6, 1998, at E2. The first study was conducted by Rex Forehand and others, Rex Forehand et al., Is Adolescent Adjustment Following Parental Divorce a Function of Predivorce Adjustment?, 25 J. ABNORMAL CHILD PSYCHOL. 157 (1997). The second study is contained in PAUL R. AMATO & ALAN BOOTH, A GENERATION AT RISK: GROWING UP IN AN ERA OF FAMILY UPHEAVAL (1997 ). The third study appears in RONALD L. SIMONS, UNDERSTANDING DIFFERENCES BETWEEN DIVORCED AND INTACT FAMILIES: STRESS INTERACTION AND CHILD OUTCOME 203-05 (1996).
63. Wade E. Horn, Strong Case for Staying Together Despite Discord, WASHINGTON TIMES, Jan. 6, 1998, at E2. The first study was conducted by Rex Forehand and others, Rex Forehand et al., Is Adolescent Adjustment Following Parental Divorce a Function of Predivorce Adjustment?, 25 J. ABNORMAL CHILD PSYCHOL. 157 (1997). The second study is contained in PAUL R. AMATO & ALAN BOOTH, A GENERATION AT RISK: GROWING UP IN AN ERA OF FAMILY UPHEAVAL (1997 ). The third study appears in RONALD L. SIMONS, UNDERSTANDING DIFFERENCES BETWEEN DIVORCED AND INTACT FAMILIES: STRESS INTERACTION AND CHILD OUTCOME 203-05 (1996).
64. Wade E. Horn, Strong Case for Staying Together Despite Discord, WASHINGTON TIMES, Jan. 6, 1998, at E2. The first study was conducted by Rex Forehand and others, Rex Forehand et al., Is Adolescent Adjustment Following Parental Divorce a Function of Predivorce Adjustment?, 25 J. ABNORMAL CHILD PSYCHOL. 157 (1997). The second study is contained in PAUL R. AMATO & ALAN BOOTH, A GENERATION AT RISK: GROWING UP IN AN ERA OF FAMILY UPHEAVAL (1997 ). The third study appears in RONALD L. SIMONS, UNDERSTANDING DIFFERENCES BETWEEN DIVORCED AND INTACT FAMILIES: STRESS INTERACTION AND CHILD OUTCOME 203-05 (1996).
65. Horn, supra note 37, at E2. One of the studies is included in AMATO & BOOTH, supra note 37.
66. AMATO & BOOTH, supra note 37, at 238.
67. Wallerstein & Lewis, supra note 34.
68. Id.
69. See id.
70. See BLANKENHORN, supra note 8, at 148-70.
71. Id. at 25. "The honest truth, McLanahan discovered, was that a father and husband is more than a breadwinner. His presence matters in the lives of his children, and his absence creates what Irwin Garfinkel and McLanahan have called 'a new American dilemma.'" IRWIN GARFINKEL & SARA S. MCLANAHAN, SINGLE MOTHERS AND THEIR CHILDREN: A NEW AMERICAN DILEMMA (1986). See STANTON, supra note 8, at 103.
72. BLANKENHORN, supra note 8, at 25.
73. "From the child's perspective, child-support payments even if fully paid, do not replace a father's economic provision. More fundamentally, they do not replace a father." Id. at 127.
74. Id. at 18 (emphasis added).
75. Wallerstein & Lewis, supra note 34.
76. See BLANKENHORN, supra note 8, at 223. Interestingly, in an essay by Lance Morrow, he expresses what he believes to be the view of men toward marriage: But off in a range of the male psyche audible only to guys and dogs, there vibrated the sneaking thought that the fugitive groom - however big a jerk, nay, slimeball - had made good an escape that men, in the yet undomesticated zones of their hearts, always applaud. Something in every man abhors a wedding. Not for nothing are such ceremonies performed by authority - and - punishment figures in black - clergy, judges. And as a guy contemplates the $125,000 trap, his premature hanging, with rosebuds flown in from France, the something in that man's mind cheers a miracle of last-minute escape - even if it is an ignominious miracle. Huck has lit out for the territory. Lance Morrow, Goodbye, Miss Havisham, TIME, Dec. 8, 1997, at 114 (emphasis added).
77. STANTON, supra note 8, at 159.
78. See GALLAGHER, supra note *, at 5; Larry L. Bumpass, What's Happening to the Family? Interaction Between Demographic and Institutional Change, 27 DEMOGRAPHY 483, 485 (1990).
79. Christopher Wolfe, The Marriage of Your Choice, FIRST THINGS, February, 1995, at 37.
80. Id. at 41.
81. Among philosophers, St. Thomas Aquinas sets out perhaps the most profound view of law's influence on human behavior. In St. Thomas Aquinas on Law and Justice, James Gordley explains that Aquinas' view of law is especially relevant since it "profoundly influenced the development of Western law." JAMES R. GORDLEY, Introduction, in ST. THOMAS AQUINAS ON LAW AND JUSTICE 6 (1988). "Thomas regarded law as a rule leading man to good . . . ." Aquinas' treatise on law "recognized the nature of man and the will of God as sources of law," and that "[t]he rules made by human authority are not law unless they rest on principles taken from these sources." Id. For Aquinas, human law rests on natural law and both human law and natural law rest on eternal law. According to Thomas, law as well as virtue is a concept that must be defined in terms of an ultimate end that constitutes the good for man. Virtue is inside a person moving him to good. Law is outside a person moving him to good. Law does so by serving as a rule or measure of human actions .... Law is "[1] an ordinance of reason [2] for the common good [3] made by him who has care of the community and [4] promulgated." Id. at 11 (quoting SUMMA THEOLOGICA 1-11, q. 90, a. 4). Law's power to coerce assures "'an efficacious inducement to virtue.'" Id. at 12 (quoting SUMMA THEOLOGICA 1-11, q. 90, a. 3, rep. 2).
82. See GLENDON, THE NEW FAMILY, supra note 2, at 119-25.
83. GLENDON, ABORTION AND DIVORCE, supra note 1, at 3. See MARY ANN GLENDON, A NATION UNDER LAWYERS (1994).
84. GLENDON, ABORTION AND DIVORCE, supra note 1, at 3. See MARY ANN GLENDON, A NATION UNDER LAWYERS (1994).
85. GLENDON, ABORTION AND DIVORCE, supra note 1, at 113.
86. In Abortion and Divorce, Glendon wrote that: Anglo-American law was susceptive to assimilating modern notions of individual liberty in a more unrestricted form than the civil law systems were. This legal difference seems attributable not only to social factors, but also in part to happenings in the world of ideas: first, by the fact that the common law and civil law systems
87. GLENDON, ABORTION AND DIVORCE, supra note 1, at 133.
88. Commenting on Plato's Laws, Professor Glendon observes: "The Athenian Stranger continually brings the discussion around to the classical idea that the aim of law is to lead the citizens toward virtue, to make them noble and wise. The Stranger stresses, further, that the lawgiver has not only force but also persuasion at his disposal as a means to accomplish this aim." GLENDON, ABORTION AND DIVORCE, supra note 1, at 6. See also GORDLEY, supra note 54. In the same Introduction, Gordley bemoans modern legal theorists, even those in Western countries other than the United States and Britain. Like the thinkers we have just imagined, modern legal theorists often find room for only one source of law. In their cases it is human law. Their writings reflect a Western civilization that has changed considerably since the time of Thomas Aquinas. The Judeo-Christian heritage has ceased to be a matter of public commitment and become one of private belief. Id. at 16.
89. AMITAI ETZIONI & PETER RUBIN, COMMUNITARIAN NETWORK, OPPORTUNING VIRTUE: THE LESSONS TO BE LEARNED FROM LOUISIANA'S COVENANT MARRIAGE LAW: A COMMUNITARIAN REPORT (1997).
90. See GORDLEY, supra note 54, at 20-22. Gordley describes the influence of the late scholars on Spanish natural law as well as Grotius on jurists who influenced continental codifications. The late scholastics "tried to synthesize Thomas' moral philosophy with Roman law." Id. at 21. See also Wolfe, supra note 53.
91. GLENDON, ABORTION AND DIVORCE, supra note 1, at 7.
92. James Boyd White, Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life, 52 U. CHI. L. REV. 684, 684 (1985).
93. GLENDON, ABORTION AND DIVORCE, supra note 1, at 9. See also CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 173 (1983) (Geertz speaks of laws and the "stories they tell, symbols they deploy" and "visions they project.").
94. GLENDON, ABORTION AND DIVORCE, supra note 1, at 9. See also CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 173 (1983) (Geertz speaks of laws and the "stories they tell, symbols they deploy" and "visions they project.").
95. Wolfe, supra note 52, at 37-38.
96. For a review of the United States Supreme Court cases defining marriage, see Katherine S. Spaht, Beyond Baehr: Strengthening the Definition of Marriage, 11 BYU J. P. L. (forthcoming 1998), which traces the history of the definition of marriage in the opinions beginning with Loving v. Virginia, 388 U.S. 1 (1967), that first recognized marriage as a fundamental personal right of every citizen, to Turner v. Safley, 482 U.S. 78 (1986), in which almost twenty years later, Justice Sandra Day O'Connor outlined the attributes of marriage sufficient to create a constitutionally protected marital relationship in the prison context. These attributes are: "expressions of emotional support and public commitment, an exercise of religious faith, the expectation that the marriage will be fully consummated, [and] the receipt of government benefits." Id. at 94. Not surprisingly, in 1996 the federal court of appeals in Shaharv. Bowers, 70 F.3d 1218 (11th Cir. 1995), concluded that the constitutionally protected right of intimate association includes a lesbian relationship with contours similar to "marriage" as currently defined in judicial opinions: "Though the religious-based marriage in which Shahar participated was not marriage in a civil, legal sense it was intimate and highly personal in the sense of affection, commitment, and permanency and, as we have spelled out, it was inextricably entwined with Shahar's exercise of her religious beliefs." Id. at 1225 (emphasis added). The opinion was vacated and the en banc panel reversed the opinion. Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997). Thereafter, the United States Supreme Court denied certiorari. Shahar v. Bowers, 118 U.S. 693 (1998). See David Orgon Coolidge, Same-Sex Marriage? Baehr v. Miike and the Meaning of Marriage, 38 S. TEX. L. REV. 1, 33 (1997); David Orgon Coolidge, Playin' the Loving Card: Loving v. Virginia, Baehr v. Miike, and the Politics of Analogy, BYU J. P. L. (forthcoming 1998); Margaret F. Brinig, The Supreme Court's Impact on Marriage, 1967-87, How. L. J. (forthcoming 1998). See also Jonathan Rauch, For Better or Worse? Behind the Movement for Gay Marriage Lies a Deeper Issue: What is Marriage For, and Why is it in Trouble?, THE NEW REPUBLIC, May 6, 1996, at 18.
97. For a review of the United States Supreme Court cases defining marriage, see Katherine S. Spaht, Beyond Baehr: Strengthening the Definition of Marriage, 11 BYU J. P. L. (forthcoming 1998), which traces the history of the definition of marriage in the opinions beginning with Loving v. Virginia, 388 U.S. 1 (1967), that first recognized marriage as a fundamental personal right of every citizen, to Turner v. Safley, 482 U.S. 78 (1986), in which almost twenty years later, Justice Sandra Day O'Connor outlined the attributes of marriage sufficient to create a constitutionally protected marital relationship in the prison context. These attributes are: "expressions of emotional support and public commitment, an exercise of religious faith, the expectation that the marriage will be fully consummated, [and] the receipt of government benefits." Id. at 94. Not surprisingly, in 1996 the federal court of appeals in Shaharv. Bowers, 70 F.3d 1218 (11th Cir. 1995), concluded that the constitutionally protected right of intimate association includes a lesbian relationship with contours similar to "marriage" as currently defined in judicial opinions: "Though the religious-based marriage in which Shahar participated was not marriage in a civil, legal sense it was intimate and highly personal in the sense of affection, commitment, and permanency and, as we have spelled out, it was inextricably entwined with Shahar's exercise of her religious beliefs." Id. at 1225 (emphasis added). The opinion was vacated and the en banc panel reversed the opinion. Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997). Thereafter, the United States Supreme Court denied certiorari. Shahar v. Bowers, 118 U.S. 693 (1998). See David Orgon Coolidge, Same-Sex Marriage? Baehr v. Miike and the Meaning of Marriage, 38 S. TEX. L. REV. 1, 33 (1997); David Orgon Coolidge, Playin' the Loving Card: Loving v. Virginia, Baehr v. Miike, and the Politics of Analogy, BYU J. P. L. (forthcoming 1998); Margaret F. Brinig, The Supreme Court's Impact on Marriage, 1967-87, How. L. J. (forthcoming 1998). See also Jonathan Rauch, For Better or Worse? Behind the Movement for Gay Marriage Lies a Deeper Issue: What is Marriage For, and Why is it in Trouble?, THE NEW REPUBLIC, May 6, 1996, at 18.
98. For a review of the United States Supreme Court cases defining marriage, see Katherine S. Spaht, Beyond Baehr: Strengthening the Definition of Marriage, 11 BYU J. P. L. (forthcoming 1998), which traces the history of the definition of marriage in the opinions beginning with Loving v. Virginia, 388 U.S. 1 (1967), that first recognized marriage as a fundamental personal right of every citizen, to Turner v. Safley, 482 U.S. 78 (1986), in which almost twenty years later, Justice Sandra Day O'Connor outlined the attributes of marriage sufficient to create a constitutionally protected marital relationship in the prison context. These attributes are: "expressions of emotional support and public commitment, an exercise of religious faith, the expectation that the marriage will be fully consummated, [and] the receipt of government benefits." Id. at 94. Not surprisingly, in 1996 the federal court of appeals in Shaharv. Bowers, 70 F.3d 1218 (11th Cir. 1995), concluded that the constitutionally protected right of intimate association includes a lesbian relationship with contours similar to "marriage" as currently defined in judicial opinions: "Though the religious-based marriage in which Shahar participated was not marriage in a civil, legal sense it was intimate and highly personal in the sense of affection, commitment, and permanency and, as we have spelled out, it was inextricably entwined with Shahar's exercise of her religious beliefs." Id. at 1225 (emphasis added). The opinion was vacated and the en banc panel reversed the opinion. Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997). Thereafter, the United States Supreme Court denied certiorari. Shahar v. Bowers, 118 U.S. 693 (1998). See David Orgon Coolidge, Same-Sex Marriage? Baehr v. Miike and the Meaning of Marriage, 38 S. TEX. L. REV. 1, 33 (1997); David Orgon Coolidge, Playin' the Loving Card: Loving v. Virginia, Baehr v. Miike, and the Politics of Analogy, BYU J. P. L. (forthcoming 1998); Margaret F. Brinig, The Supreme Court's Impact on Marriage, 1967-87, How. L. J. (forthcoming 1998). See also Jonathan Rauch, For Better or Worse? Behind the Movement for Gay Marriage Lies a Deeper Issue: What is Marriage For, and Why is it in Trouble?, THE NEW REPUBLIC, May 6, 1996, at 18.
99. For a review of the United States Supreme Court cases defining marriage, see Katherine S. Spaht, Beyond Baehr: Strengthening the Definition of Marriage, 11 BYU J. P. L. (forthcoming 1998), which traces the history of the definition of marriage in the opinions beginning with Loving v. Virginia, 388 U.S. 1 (1967), that first recognized marriage as a fundamental personal right of every citizen, to Turner v. Safley, 482 U.S. 78 (1986), in which almost twenty years later, Justice Sandra Day O'Connor outlined the attributes of marriage sufficient to create a constitutionally protected marital relationship in the prison context. These attributes are: "expressions of emotional support and public commitment, an exercise of religious faith, the expectation that the marriage will be fully consummated, [and] the receipt of government benefits." Id. at 94. Not surprisingly, in 1996 the federal court of appeals in Shaharv. Bowers, 70 F.3d 1218 (11th Cir. 1995), concluded that the constitutionally protected right of intimate association includes a lesbian relationship with contours similar to "marriage" as currently defined in judicial opinions: "Though the religious-based marriage in which Shahar participated was not marriage in a civil, legal sense it was intimate and highly personal in the sense of affection, commitment, and permanency and, as we have spelled out, it was inextricably entwined with Shahar's exercise of her religious beliefs." Id. at 1225 (emphasis added). The opinion was vacated and the en banc panel reversed the opinion. Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997). Thereafter, the United States Supreme Court denied certiorari. Shahar v. Bowers, 118 U.S. 693 (1998). See David Orgon Coolidge, Same-Sex Marriage? Baehr v. Miike and the Meaning of Marriage, 38 S. TEX. L. REV. 1, 33 (1997); David Orgon Coolidge, Playin' the Loving Card: Loving v. Virginia, Baehr v. Miike, and the Politics of Analogy, BYU J. P. L. (forthcoming 1998); Margaret F. Brinig, The Supreme Court's Impact on Marriage, 1967-87, How. L. J. (forthcoming 1998). See also Jonathan Rauch, For Better or Worse? Behind the Movement for Gay Marriage Lies a Deeper Issue: What is Marriage For, and Why is it in Trouble?, THE NEW REPUBLIC, May 6, 1996, at 18.
100. For a review of the United States Supreme Court cases defining marriage, see Katherine S. Spaht, Beyond Baehr: Strengthening the Definition of Marriage, 11 BYU J. P. L. (forthcoming 1998), which traces the history of the definition of marriage in the opinions beginning with Loving v. Virginia, 388 U.S. 1 (1967), that first recognized marriage as a fundamental personal right of every citizen, to Turner v. Safley, 482 U.S. 78 (1986), in which almost twenty years later, Justice Sandra Day O'Connor outlined the attributes of marriage sufficient to create a constitutionally protected marital relationship in the prison context. These attributes are: "expressions of emotional support and public commitment, an exercise of religious faith, the expectation that the marriage will be fully consummated, [and] the receipt of government benefits." Id. at 94. Not surprisingly, in 1996 the federal court of appeals in Shaharv. Bowers, 70 F.3d 1218 (11th Cir. 1995), concluded that the constitutionally protected right of intimate association includes a lesbian relationship with contours similar to "marriage" as currently defined in judicial opinions: "Though the religious-based marriage in which Shahar participated was not marriage in a civil, legal sense it was intimate and highly personal in the sense of affection, commitment, and permanency and, as we have spelled out, it was inextricably entwined with Shahar's exercise of her religious beliefs." Id. at 1225 (emphasis added). The opinion was vacated and the en banc panel reversed the opinion. Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997). Thereafter, the United States Supreme Court denied certiorari. Shahar v. Bowers, 118 U.S. 693 (1998). See David Orgon Coolidge, Same-Sex Marriage? Baehr v. Miike and the Meaning of Marriage, 38 S. TEX. L. REV. 1, 33 (1997); David Orgon Coolidge, Playin' the Loving Card: Loving v. Virginia, Baehr v. Miike, and the Politics of Analogy, BYU J. P. L. (forthcoming 1998); Margaret F. Brinig, The Supreme Court's Impact on Marriage, 1967-87, How. L. J. (forthcoming 1998). See also Jonathan Rauch, For Better or Worse? Behind the Movement for Gay Marriage Lies a Deeper Issue: What is Marriage For, and Why is it in Trouble?, THE NEW REPUBLIC, May 6, 1996, at 18.
101. GLENDON, ABORTION AND DIVORCE, supra note 1, at 63-64.
102. Lee E. Teitelbaum, The Last Decade(s) of American Family Law, 46 J. LEGAL EDUC. 546, 547-48 (1996).
103. David Popenoe, The Family Condition in America, in VALUES AND PUBLIC POLICY 95 (Henry J. Aaron et al. eds., 1994).
104. SEEDBEDS OF VIRTUE: SOURCES OF COMPETENCE, CHARACTER, AND CITIZENSHIP IN AMERICAN SOCIETY (Mary Ann Glendon & David S. Blankenhorn eds., 1995) [hereinafter SEEDBEDS] (containing a collection of essays about the "seedbeds" of civic virtue).
105. See GLENDON, RIGHTS TALK, supra note 12, at 109-44.
106. SEEDBEDS, supra note 71, at 3. "Yet precisely because other social bonds are becoming more undependable and impermanent, the need for strong and lasting family bonds increases, even as the environment that would support strong family bonds weakens." Id. at 192.
107. GLENDON, RIGHTS TALK, supra note 12, at 135.
108. GLENDON, ABORTION AND DIVORCE, supra note 1, at 118.
109. Id.
110. GLENDON, RIGHTS TALK, supra note 12, at 173.
111. Americans Are Neighborly, Joiners, AARP Survey Finds, WASHINGTON TIMES, Jan. 4, 1998, at 4.
112. Robert Putnam argues Americans' civic involvement nonetheless has decreased over the past twenty-five years: "There has been a [sixty] percent decline in the number of public meetings members go to, a [fifty] percent decline in the number of club meetings people go to. . . ." Id. See also Robert Putnam, Bowling Alone: America's Declining Social Capital, 6 J. DEMOCRACY 65 (1995).
113. See RICHARD JOHN NEUHAUS, THE NAKED PUBLIC SQUARE: RELIGION AND DEMOCRACY IN AMERICA (1984).
114. GLENDON, RIGHTS TALK, supra note 12, at 130.
115. Id. at 134.
116. "[The law] does not permit people to really bind themselves to a permanent and exclusive marriage, by reinforcing the personal commitment with the force of the law." Wolfe, supra note 52, at 38. "As the current legal order stands, all American marriages can be dissolved by divorce decrees." Id. at 37.
117. See Coolidge, supra note 67, at 53. Coolidge views marriage as a total sexual community. From dimensions described in note 86, infra, Coolidge derives the following principles for the governance of the community of marriage: "Marriage should be male-female (the structural dimension); Marriage should be monogamous (the social dimension); Marriage should be exclusive (the subjective dimension); Marriage should be permanent (the spiritual dimension)." (emphasis added.)
118. See 1997 La. Acts 1380. The legislation has been referred to in the American Bar Association Journal as "A Stealth Anti-Divorce Weapon." A Stealth Anti-Divorce Weapon, ABA J., Sept. 1997, at 28.
119. See LA. REV. STAT. ANN. § 9:272 (West Supp. 1998) (as amended by 1997 La. Acts 1380, § 3): A. A covenant marriage is a marriage entered into by one male and one female who understand and agree that the marriage between them is a life-long relationship . . . . Only when there has been a complete and total breach of the marital covenant commitment may the non-breaching party seek a declaration that the marriage is no longer legally recognized. B. A man and woman may contract a covenant marriage by declaring their intent to do so on their application for a marriage license [LA. REV. STAT. ANN. § 9:225, 234 (West Supp. 1998) (as amended by 1997 La. Acts 1380 § 2)], as provided in [LA. REV. STAT. ANN. § 9:224(C) (West Supp. 1998)], and executing a declaration of intent to contract a covenant marriage, as provided in [LA. REV. STAT. ANN. 9:273 (West Supp. 1998)] . . . . (emphasis added)
120. See Coolidge, supra note 67, at 52. Coolidge proposes a "transmodern" model of marriage consistent with the social pluralist view of marriage. The "transmodern" model contains the following dimensions: The four central elements of marriage as a total sexual community might be described as follows: Consummation: a bodily union which is open to life (the structural dimension); Companionship: a relationship of mutuality (the social dimension); Consent: a choice to marry a particular individual (the subjective dimension); Covenant: a vow of total commitment (the spiritual dimension); Understood this way, entering into marriage is a moral act that embodies substantive premises. Id. (emphasis added)
121. See LA. REV. STAT. ANN. § 9:273 (A) (2) (a) (West Supp. 1998) (as amended by 1997 La. Acts 1380, § 3): An affidavit by the parties that they have received premarital counseling from a priest, minister, rabbi, clerk of the Religious Society of Friends, any clergyman of any religious sect, or a marriage counselor, which counseling shall include a discussion of the seriousness of covenant marriage, communication of the fact that a covenant marriage is a commitment for life, a discussion of the obligation to seek counseling in times of marital difficulties, and a discussion of the exclusive grounds for legally terminating a covenant marriage by divorce or by divorce after a judgment of separation from bed and board.
122. Interestingly, a renowned French professor who taught at the University of Paris, Léon Mazeaud, proposed a solution (very similar to covenant marriage) to what he considered to be the high incidence of divorce in France in the mid-1940s. See Léon Mazeaud, Solution au Problême du Divorce, in RECUEIL DALLOZ, JURISPRUDENCE 1945, at 11-12. Subsequently, Henri Mazeaud proposed the solution in CONTRE-PROJET: TRAVAUX DE LA COMMISSION DE REFORMÉ DU CODE CIVIL 498 (1947-48). From pages 499 to 511 in the same publication there is reprinted the discussion of the proposal by the Commission Pleniere on December 5, 1947. See also
123. HENRI MAZEAUD & LÉON MAZEAUD, LECONS DE DROIT CIVIL: TOME PREMIER 1318-34 (3d ed. Editions Montchrestien). I am indebted to Professor Cynthia Samuel of Tulane University Law School, who discovered these materials.
124. See A.N. YIANNOPOULOS, THE CIVIL CODES OF LOUISIANA: HISTORICAL POLITICAL, AND LEGAL BACKGROUND OF THE CODIFICATION, LOUISIANA CIVIL CODE XIX (1998); SYMEON SWIEONIDES, AN INTRODUCTION TO THE LOUISIANA CIVIL LAW SYSTEM 61-126 (6th ed. 1991); Mary Ann Glendon, Family Law Reform in the 1980s, 44 LA. L. REV. 1553, 1562 (1984).
125. See A.N. YIANNOPOULOS, THE CIVIL CODES OF LOUISIANA: HISTORICAL POLITICAL, AND LEGAL BACKGROUND OF THE CODIFICATION, LOUISIANA CIVIL CODE XIX (1998); SYMEON SWIEONIDES, AN INTRODUCTION TO THE LOUISIANA CIVIL LAW SYSTEM 61-126 (6th ed. 1991); Mary Ann Glendon, Family Law Reform in the 1980s, 44 LA. L. REV. 1553, 1562 (1984).
126. See A.N. YIANNOPOULOS, THE CIVIL CODES OF LOUISIANA: HISTORICAL POLITICAL, AND LEGAL BACKGROUND OF THE CODIFICATION, LOUISIANA CIVIL CODE XIX (1998); SYMEON SWIEONIDES, AN INTRODUCTION TO THE LOUISIANA CIVIL LAW SYSTEM 61-126 (6th ed. 1991); Mary Ann Glendon, Family Law Reform in the 1980s, 44 LA. L. REV. 1553, 1562 (1984).
127. In HENRI MAZEAUD ET AL., LECONS DE DROIT CIVIL: LA FAMILLE bk. 1, vol. 3, nos. 1413-15, at 649-52 (Laurent Levenuer ed., 7th ed. 1995), the newest edition of a work begun by Mazeaud, the author at number 1413 opines: The problem [of divorce] unleashes the passions, for it touches the [most profound] beliefs of man: [those] about religion and politics. Anti-clericalism, it has been noted, has been and remains one of the driving forces behind the partisans of divorce, while many of the adversaries of divorce systematically enclose themselves in their faith. The problem, then, can appear to be intractable . . . . The author then proceeds to discuss the choice of an indissoluble marriage as a solution. In number 1415, part II at page 654, the text of Léon Mazeaud, entitled Solution to the Problem of Divorce, written in 1945 appears: A people's worth is measured by the number and quality of its men. These men ought to know how to live, to die, and to transmit life. Knowledge and ability. The country, which demands of them their lives, ought to give them life, both material and moral. To do that it is necessary, first of all, to build up the family forcefully. That's what makes men numerous and strong. Without it, the people get bent under the cataclysm of "Sodom and Gomorrah." Build up the family. Inscribe its name on the fronts of the temples if one wants; words are erased with the men who trace them. Above all seek out its weaknesses [in order to] bear it aid. The family is made of stability. All [social] cohesion resides in its perpetuity. . . . The French family is, however, an ephemeral group. It is broken up at the whim of its members. Marriage, which founds it, is provisional. It endures as long as the happiness of the spouses endures. Divorce is there in order to rupture marriage. . . . Born from the fight led against the church, divorce is rooted in our laws. The debate ought to cease. It is possible to reach agreement, both in liberty and by liberty. Some want a marriage that divorce dissolves; others, an indissoluble marriage. Then let each choose! Our laws have, in succession, decreed first indissoluble marriage, then dissolvable marriage. Let them [now] decree marriage dissolvable or indissoluble according to the choice of the future spouses! . . . This is the solution to the problem of divorce - a facultatively indissoluble marriage. No one can protest, for each remains free to bind himself up to death or only up to divorce. No one will protest, save for the hypocrite who, at the same time, promises his life and keeps the disposition of it. Id. at 654-55 (emphasis added). I am indebted to my colleague, Professor Randy Trahan, for his translation of this very important work.
128. Mary Ann Glendon observes: Max Rheinstein, writing in 1972, was nearly alone among family law scholars in declining to condemn the status quo in which strict fault-based divorce laws were maintained on the books, while easy mutual consent divorce was available in practice. This dual approach to divorce was, he said, a "democratic compromise," which had "resulted in the satisfaction of almost everyone concerned." It was one way of accommodating the ideals of a large part of the population with the practices of those who could not live up to those ideals - even when, as is often the case, they supported them in principle. GLENDON, ABORTION AND DIVORCE, supra note 1, at 66 (footnotes omitted). In describing other Western countries approach to divorce, Professor Glendon opines: The various versions of this compromise all had this in common: they officially maintained the idea of marriage as an enduring relationship involving reciprocal rights and obligations. In the absence of mutual consent, this relationship could be terminated only when one spouse seriously breached his or her marital duties, or when the marriage had ceased to function over a long period of time. The extent to which this official story was meant to be serious is indicated by the length of the mandatory separation period for unilateral divorce and the presence or absence of a hardship clause. Whether it is serious in practice depends on how thoroughly the courts actually look into the facts and enforce the law. Id. at 106-07.
129. In The Marriage of Your Choice, Christopher Wolfe writes: [S]ome people might want to have that unbreakable, legally enforceable bond for themselves, on various grounds. It would provide very strong incentives for each person to make his or her own initial decision to marry carefully and reassure each person about the seriousness with which his or her prospective spouse makes that decision. It would provide similar incentives for each of them to exert the maximum effort to make the marriage work, and again, reassure each one that his or her spouse has the same incentives. This could be viewed as one "strategy" for maximizing the likelihood of a successful marriage. Wolfe, supra note 52, at 37-38.
130. See LA. REV. STAT. ANN. § 9:273(A) (1) (West Supp. 1998) (as amended by 1997 La. Acts 1380, § 3): A declaration of intent to contract a covenant marriage shall contain all of the following: (1) A recitation by the parties to the following effect: A COVENANT MARRIAGE We do solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for so long as they both may live. We have chosen each other carefully and disclosed to one another everything which could adversely affect the decision to enter into this marriage. We have received premarital counseling on the nature, purposes, and responsibilities of marriage. We have read the Covenant Marriage Act, and we understand that a Covenant Marriage is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling. With full knowledge of what this commitment means, we do hereby declare that our marriage will be bound by Louisiana law on Covenant Marriages and we promise to love, honor, and care for one another as husband and wife for the rest of our lives.
131. LA. REV. STAT. ANN. § 9:273(A) (1) (West Supp. 1998) (as amended by 1997 La. Acts 1380, § 3). "A declaration of intent to contract a covenant marriage shall contain all of the following: A recitation by the parties to the following effect: A COVENANT MARRIAGE If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling." Id.
132. See La. REV. STAT. ANN. § 9:307(A) (West Supp. 1998) (as amended by 1997 La. Acts 1380, § 4). Notwithstanding any other law to the contrary and subsequent to the parties obtaining counseling, a spouse to a covenant marriage may obtain a judgment of divorce only upon proof of any of the following: (1) The other spouse has committed adultery. (2) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor. (3) The other spouse has abandoned the matrimonial domicile for a period of one year and constantly refuses to return. (4) The other spouse has physically or sexually abused the spouse seeking the divorce or a child of one of the spouses. (5) The spouses have been living separate and apart continuously without reconciliation for a period of two years. (6) (a) The spouses have been living separate and apart continuously without reconciliation for a period of one year from the date the judgment of separation from bed and board was signed. (b) If there is a minor child or children of the marriage, the spouses have been living separate and apart continuously without reconciliation for a period of one year and six months from the date the judgment of separation from bed and board was signed; however, if abuse of a child of the marriage or a child of one of the spouses is the basis for which the judgment of separation from bed and board was obtained, then a judgment of divorce may be obtained if the spouses have been living separate and apart continuously without reconciliation for a period of one year from the date the judgment of separation from bed and board was signed. As originally introduced, a House Bill of the Louisiana Legislature, H.R. 756, Reg. Sess. (La. 1997), which contained the "covenant marriage" legislation, permitted immediate divorce for only two reasons: adultery and abandonment for one year. A legal separation could be obtained only for physical abuse of a spouse or physical or sexual abuse of a child of one of the spouses. Under section 9:307(A) as enacted and quoted above, there are six grounds for divorce. Obviously, the bill was amended significantly during the legislative process.
133. See La. REV. STAT. ANN. § 9:307(A) (5) (West Supp. 1998) (as amended by 1997 La. Acts 1380, § 4) (for text, see supra note 96). By comparison, in Louisiana, in a marriage that is not a "covenant marriage" either spouse may obtain a divorce if the spouses have been living separate and apart for either 180 days after the filing of a petition for a divorce, LA. CIV. CODE ANN. art. 102 (West 1998), or six months before filing a petition for divorce, LA. CIV. CODE ANN. art. 103(West 1998).
134. Of course, there is fierce opposition from members of the legal profession, practitioners and academics, to a restoration of objective morality to the relationship of marriage. For a sampling, see, e.g., selected essays in DIVORCE REFORM AT THE CROSSROADS (Stephen D. Sugarman & Herma Hill Kay eds., 1991); Ira Mark Ellman & Sharon Lohr, Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 1997 U. ILL. L. REV. 719 (1997); J. Thomas Oldham, ALI Principles of Family Dissolution: Some Comments, 1997 U. ILL. L. REV. 801, 818-20 (1997). See also End No-Fault Divorce? Yes: Maggie Gallagher; No: Barbara Dafoe Whitehead, FIRST THINGS, Aug.-Sept. 1997, at 24; Ira Mark Ellman, The Place of Fault in a Modern Divorce Law, 28 ARIZ. ST. L.J. 773 (1996). In addition, two students' articles question returning to fault-based divorce: Laura Bradford, The Counterrevolution: A Critique of Recent Proposals to Reform No-Fault Divorce Laws, 49 STAN. L. REV. 607 (1997); Martha Heller, Should Breaking Up Be Harder to Do?: The Ramifications of a Return to Fault-Based Divorce Would Have Upon Domestic Violence, 4 VA. J. Soc. POL'Y. & L. 263 (1996) (emphasis added). "Despite statistics indicating the prevalent financial disadvantages faced by divorced women, the transition from a fault to a no-fault system promoted the financial independence of women by driving them into the labor market." Heller, supra at 280. See also Katha Politt, What's Right About Divorce, N.Y. TIMES, June 27, 1997, at A29. "There are good reasons that historical advances in women's legal and social equality, not to mention their self-esteem and longevity, go hand in hand with easier and more equal access to divorce." Id. That is a truly incredible sentence to a woman who has been married for twenty-six years and who has three children and always considered herself equal to men legally and socially. Furthermore, to profess that a woman cannot advance her own interests without sacrificing her children's best interests is regrettable, to say the least.
135. Of course, there is fierce opposition from members of the legal profession, practitioners and academics, to a restoration of objective morality to the relationship of marriage. For a sampling, see, e.g., selected essays in DIVORCE REFORM AT THE CROSSROADS (Stephen D. Sugarman & Herma Hill Kay eds., 1991); Ira Mark Ellman & Sharon Lohr, Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 1997 U. ILL. L. REV. 719 (1997); J. Thomas Oldham, ALI Principles of Family Dissolution: Some Comments, 1997 U. ILL. L. REV. 801, 818-20 (1997). See also End No-Fault Divorce? Yes: Maggie Gallagher; No: Barbara Dafoe Whitehead, FIRST THINGS, Aug.-Sept. 1997, at 24; Ira Mark Ellman, The Place of Fault in a Modern Divorce Law, 28 ARIZ. ST. L.J. 773 (1996). In addition, two students' articles question returning to fault-based divorce: Laura Bradford, The Counterrevolution: A Critique of Recent Proposals to Reform No-Fault Divorce Laws, 49 STAN. L. REV. 607 (1997); Martha Heller, Should Breaking Up Be Harder to Do?: The Ramifications of a Return to Fault-Based Divorce Would Have Upon Domestic Violence, 4 VA. J. Soc. POL'Y. & L. 263 (1996) (emphasis added). "Despite statistics indicating the prevalent financial disadvantages faced by divorced women, the transition from a fault to a no-fault system promoted the financial independence of women by driving them into the labor market." Heller, supra at 280. See also Katha Politt, What's Right About Divorce, N.Y. TIMES, June 27, 1997, at A29. "There are good reasons that historical advances in women's legal and social equality, not to mention their self-esteem and longevity, go hand in hand with easier and more equal access to divorce." Id. That is a truly incredible sentence to a woman who has been married for twenty-six years and who has three children and always considered herself equal to men legally and socially. Furthermore, to profess that a woman cannot advance her own interests without sacrificing her children's best interests is regrettable, to say the least.
136. Of course, there is fierce opposition from members of the legal profession, practitioners and academics, to a restoration of objective morality to the relationship of marriage. For a sampling, see, e.g., selected essays in DIVORCE REFORM AT THE CROSSROADS (Stephen D. Sugarman & Herma Hill Kay eds., 1991); Ira Mark Ellman & Sharon Lohr, Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 1997 U. ILL. L. REV. 719 (1997); J. Thomas Oldham, ALI Principles of Family Dissolution: Some Comments, 1997 U. ILL. L. REV. 801, 818-20 (1997). See also End No-Fault Divorce? Yes: Maggie Gallagher; No: Barbara Dafoe Whitehead, FIRST THINGS, Aug.-Sept. 1997, at 24; Ira Mark Ellman, The Place of Fault in a Modern Divorce Law, 28 ARIZ. ST. L.J. 773 (1996). In addition, two students' articles question returning to fault-based divorce: Laura Bradford, The Counterrevolution: A Critique of Recent Proposals to Reform No-Fault Divorce Laws, 49 STAN. L. REV. 607 (1997); Martha Heller, Should Breaking Up Be Harder to Do?: The Ramifications of a Return to Fault-Based Divorce Would Have Upon Domestic Violence, 4 VA. J. Soc. POL'Y. & L. 263 (1996) (emphasis added). "Despite statistics indicating the prevalent financial disadvantages faced by divorced women, the transition from a fault to a no-fault system promoted the financial independence of women by driving them into the labor market." Heller, supra at 280. See also Katha Politt, What's Right About Divorce, N.Y. TIMES, June 27, 1997, at A29. "There are good reasons that historical advances in women's legal and social equality, not to mention their self-esteem and longevity, go hand in hand with easier and more equal access to divorce." Id. That is a truly incredible sentence to a woman who has been married for twenty-six years and who has three children and always considered herself equal to men legally and socially. Furthermore, to profess that a woman cannot advance her own interests without sacrificing her children's best interests is regrettable, to say the least.
137. Of course, there is fierce opposition from members of the legal profession, practitioners and academics, to a restoration of objective morality to the relationship of marriage. For a sampling, see, e.g., selected essays in DIVORCE REFORM AT THE CROSSROADS (Stephen D. Sugarman & Herma Hill Kay eds., 1991); Ira Mark Ellman & Sharon Lohr, Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 1997 U. ILL. L. REV. 719 (1997); J. Thomas Oldham, ALI Principles of Family Dissolution: Some Comments, 1997 U. ILL. L. REV. 801, 818-20 (1997). See also End No-Fault Divorce? Yes: Maggie Gallagher; No: Barbara Dafoe Whitehead, FIRST THINGS, Aug.-Sept. 1997, at 24; Ira Mark Ellman, The Place of Fault in a Modern Divorce Law, 28 ARIZ. ST. L.J. 773 (1996). In addition, two students' articles question returning to fault-based divorce: Laura Bradford, The Counterrevolution: A Critique of Recent Proposals to Reform No-Fault Divorce Laws, 49 STAN. L. REV. 607 (1997); Martha Heller, Should Breaking Up Be Harder to Do?: The Ramifications of a Return to Fault-Based Divorce Would Have Upon Domestic Violence, 4 VA. J. Soc. POL'Y. & L. 263 (1996) (emphasis added). "Despite statistics indicating the prevalent financial disadvantages faced by divorced women, the transition from a fault to a no-fault system promoted the financial independence of women by driving them into the labor market." Heller, supra at 280. See also Katha Politt, What's Right About Divorce, N.Y. TIMES, June 27, 1997, at A29. "There are good reasons that historical advances in women's legal and social equality, not to mention their self-esteem and longevity, go hand in hand with easier and more equal access to divorce." Id. That is a truly incredible sentence to a woman who has been married for twenty-six years and who has three children and always considered herself equal to men legally and socially. Furthermore, to profess that a woman cannot advance her own interests without sacrificing her children's best interests is regrettable, to say the least.
138. Of course, there is fierce opposition from members of the legal profession, practitioners and academics, to a restoration of objective morality to the relationship of marriage. For a sampling, see, e.g., selected essays in DIVORCE REFORM AT THE CROSSROADS (Stephen D. Sugarman & Herma Hill Kay eds., 1991); Ira Mark Ellman & Sharon Lohr, Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 1997 U. ILL. L. REV. 719 (1997); J. Thomas Oldham, ALI Principles of Family Dissolution: Some Comments, 1997 U. ILL. L. REV. 801, 818-20 (1997). See also End No-Fault Divorce? Yes: Maggie Gallagher; No: Barbara Dafoe Whitehead, FIRST THINGS, Aug.-Sept. 1997, at 24; Ira Mark Ellman, The Place of Fault in a Modern Divorce Law, 28 ARIZ. ST. L.J. 773 (1996). In addition, two students' articles question returning to fault-based divorce: Laura Bradford, The Counterrevolution: A Critique of Recent Proposals to Reform No-Fault Divorce Laws, 49 STAN. L. REV. 607 (1997); Martha Heller, Should Breaking Up Be Harder to Do?: The Ramifications of a Return to Fault-Based Divorce Would Have Upon Domestic Violence, 4 VA. J. Soc. POL'Y. & L. 263 (1996) (emphasis added). "Despite statistics indicating the prevalent financial disadvantages faced by divorced women, the transition from a fault to a no-fault system promoted the financial independence of women by driving them into the labor market." Heller, supra at 280. See also Katha Politt, What's Right About Divorce, N.Y. TIMES, June 27, 1997, at A29. "There are good reasons that historical advances in women's legal and social equality, not to mention their self-esteem and longevity, go hand in hand with easier and more equal access to divorce." Id. That is a truly incredible sentence to a woman who has been married for twenty-six years and who has three children and always considered herself equal to men legally and socially. Furthermore, to profess that a woman cannot advance her own interests without sacrificing her children's best interests is regrettable, to say the least.
139. Of course, there is fierce opposition from members of the legal profession, practitioners and academics, to a restoration of objective morality to the relationship of marriage. For a sampling, see, e.g., selected essays in DIVORCE REFORM AT THE CROSSROADS (Stephen D. Sugarman & Herma Hill Kay eds., 1991); Ira Mark Ellman & Sharon Lohr, Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 1997 U. ILL. L. REV. 719 (1997); J. Thomas Oldham, ALI Principles of Family Dissolution: Some Comments, 1997 U. ILL. L. REV. 801, 818-20 (1997). See also End No-Fault Divorce? Yes: Maggie Gallagher; No: Barbara Dafoe Whitehead, FIRST THINGS, Aug.-Sept. 1997, at 24; Ira Mark Ellman, The Place of Fault in a Modern Divorce Law, 28 ARIZ. ST. L.J. 773 (1996). In addition, two students' articles question returning to fault-based divorce: Laura Bradford, The Counterrevolution: A Critique of Recent Proposals to Reform No-Fault Divorce Laws, 49 STAN. L. REV. 607 (1997); Martha Heller, Should Breaking Up Be Harder to Do?: The Ramifications of a Return to Fault-Based Divorce Would Have Upon Domestic Violence, 4 VA. J. Soc. POL'Y. & L. 263 (1996) (emphasis added). "Despite statistics indicating the prevalent financial disadvantages faced by divorced women, the transition from a fault to a no-fault system promoted the financial independence of women by driving them into the labor market." Heller, supra at 280. See also Katha Politt, What's Right About Divorce, N.Y. TIMES, June 27, 1997, at A29. "There are good reasons that historical advances in women's legal and social equality, not to mention their self-esteem and longevity, go hand in hand with easier and more equal access to divorce." Id. That is a truly incredible sentence to a woman who has been married for twenty-six years and who has three children and always considered herself equal to men legally and socially. Furthermore, to profess that a woman cannot advance her own interests without sacrificing her children's best interests is regrettable, to say the least.
140. Of course, there is fierce opposition from members of the legal profession, practitioners and academics, to a restoration of objective morality to the relationship of marriage. For a sampling, see, e.g., selected essays in DIVORCE REFORM AT THE CROSSROADS (Stephen D. Sugarman & Herma Hill Kay eds., 1991); Ira Mark Ellman & Sharon Lohr, Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 1997 U. ILL. L. REV. 719 (1997); J. Thomas Oldham, ALI Principles of Family Dissolution: Some Comments, 1997 U. ILL. L. REV. 801, 818-20 (1997). See also End No-Fault Divorce? Yes: Maggie Gallagher; No: Barbara Dafoe Whitehead, FIRST THINGS, Aug.-Sept. 1997, at 24; Ira Mark Ellman, The Place of Fault in a Modern Divorce Law, 28 ARIZ. ST. L.J. 773 (1996). In addition, two students' articles question returning to fault-based divorce: Laura Bradford, The Counterrevolution: A Critique of Recent Proposals to Reform No-Fault Divorce Laws, 49 STAN. L. REV. 607 (1997); Martha Heller, Should Breaking Up Be Harder to Do?: The Ramifications of a Return to Fault-Based Divorce Would Have Upon Domestic Violence, 4 VA. J. Soc. POL'Y. & L. 263 (1996) (emphasis added). "Despite statistics indicating the prevalent financial disadvantages faced by divorced women, the transition from a fault to a no-fault system promoted the financial independence of women by driving them into the labor market." Heller, supra at 280. See also Katha Politt, What's Right About Divorce, N.Y. TIMES, June 27, 1997, at A29. "There are good reasons that historical advances in women's legal and social equality, not to mention their self-esteem and longevity, go hand in hand with easier and more equal access to divorce." Id. That is a truly incredible sentence to a woman who has been married for twenty-six years and who has three children and always considered herself equal to men legally and socially. Furthermore, to profess that a woman cannot advance her own interests without sacrificing her children's best interests is regrettable, to say the least.
141. Of course, there is fierce opposition from members of the legal profession, practitioners and academics, to a restoration of objective morality to the relationship of marriage. For a sampling, see, e.g., selected essays in DIVORCE REFORM AT THE CROSSROADS (Stephen D. Sugarman & Herma Hill Kay eds., 1991); Ira Mark Ellman & Sharon Lohr, Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 1997 U. ILL. L. REV. 719 (1997); J. Thomas Oldham, ALI Principles of Family Dissolution: Some Comments, 1997 U. ILL. L. REV. 801, 818-20 (1997). See also End No-Fault Divorce? Yes: Maggie Gallagher; No: Barbara Dafoe Whitehead, FIRST THINGS, Aug.-Sept. 1997, at 24; Ira Mark Ellman, The Place of Fault in a Modern Divorce Law, 28 ARIZ. ST. L.J. 773 (1996). In addition, two students' articles question returning to fault-based divorce: Laura Bradford, The Counterrevolution: A Critique of Recent Proposals to Reform No-Fault Divorce Laws, 49 STAN. L. REV. 607 (1997); Martha Heller, Should Breaking Up Be Harder to Do?: The Ramifications of a Return to Fault-Based Divorce Would Have Upon Domestic Violence, 4 VA. J. Soc. POL'Y. & L. 263 (1996) (emphasis added). "Despite statistics indicating the prevalent financial disadvantages faced by divorced women, the transition from a fault to a no-fault system promoted the financial independence of women by driving them into the labor market." Heller, supra at 280. See also Katha Politt, What's Right About Divorce, N.Y. TIMES, June 27, 1997, at A29. "There are good reasons that historical advances in women's legal and social equality, not to mention their self-esteem and longevity, go hand in hand with easier and more equal access to divorce." Id. That is a truly incredible sentence to a woman who has been married for twenty-six years and who has three children and always considered herself equal to men legally and socially. Furthermore, to profess that a woman cannot advance her own interests without sacrificing her children's best interests is regrettable, to say the least.
142. Separation from bed and board was repealed by the Legislature in 1990. See LA. CIV. CODE ANN. art. 101, cmt. (c) (West 1998) (effective Jan. 1, 1991). Thus, in a marriage that is not a Covenant Marriage, legal separation is not a possibility, and the spouse who desires to alter his or her marital status has only the option of divorce.
143. See LA. REV. STAT. ANN. § 9:307(B) (West Supp. 1998) (as amended by 1997 La. Acts 1380, § 4). Notwithstanding any other law to the contrary and subsequent to the parties obtaining counseling, a spouse to a covenant marriage may obtain a judgment of separation from bed and board only upon proof of any of the following: (1) The other spouse has committed adultery. (2) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor. (3) The other spouse has abandoned the matrimonial domicile for a period of one year and constantly refuses to return. (4) The other spouse has physically or sexually abused the spouse seeking the divorce or a child of one of the spouses. (5) The spouses have been living separate and apart continuously without reconciliation for a period of two years. (6) On account of habitual intemperance of the other spouse, or excesses, cruel treatment, or outrages of the other spouse, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable.
144. See LA. REV. STAT. ANN. § 9:307(B) (6) (West Supp. 1998) (as amended by 1997 La. Acts 1380, § 4). See supra note 98.
145. See 1997 La. Acts 1380, § 5: The office of the attorney general, Department of Justice shall, prior to August 15, 1997, promulgate an informational pamphlet; entitled "Covenant Marriage Act," which shall outline in sufficient detail the consequences of entering into a covenant marriage. The informational pamphlet shall be made available to any counselor who provides marriage counseling as provided for by this Act. See also LA. REV. STAT. ANN. § 9:307(A) (2) (b) (West Supp. 1998) (as amended by 1997 La. Acts 1380, § 4). The pamphlet emphasizes the different grounds for divorce in a "standard" marriage and in a Covenant Marriage.
146. The documents consist of a declaration of intent signed by the parties, an affidavit by the parties that they have received the requisite counseling, and a notarized attestation by the counselor that he provided the requisite counseling. LA. REV. STAT. ANN. § 9:273(A) (West Supp. 1998) (as amended by 1997 La. Acts 1380, § 3).
147. See David Blankenhom, I Do?, FIRST THINGS, Nov. 1997, at 14-15. David Blankenhorn abhors modern American marriage vows because they reflect a "loving relationship of undetermined duration created of the couple, by the couple, and for the couple." Id. at 14. He makes the point in his article that the marriage vow is deeply connected to the marriage relationship.
148. On the basis of the declaration of intent signed by the parties this counseling should emphasize the possibility of reconciliation and preserving the marriage, rather than a form of counseling or therapy concerned only with the fulfillment of the individual adult. See William J. Doherty, How Therapists Threaten Marriages, RESPONSIVE COMMUNITY, Summer 1997, at 31; Kramer, supra note 4, at A23.
149. At least one Louisiana denomination failed to see the distinction. The Bishop Dan E. Solomon of the Methodist Church in Louisiana issued a statement on June 27, 1997, four days after the covenant marriage legislation passed, essentially describing the "covenant marriage" option as "unnecessary," "confusing," and "intrusive." Press Release from the Louisiana Area United Methodist Church (June 27, 1997) (on file with author).
150. See LA. REV. STAT. ANN. § 9:273(A) (2) (a) (West Supp. 1998) (as amended by 1997 La. Acts 1380, § 3) (emphasis added): An affidavit by the parties that they have received premarital counseling from a priest, minister, rabbi, clerk of the Religious Society of Friends, any clergyman of any religious sect, or a marriage counselor, which counseling shall include a discussion of the seriousness of covenant marriage, communication of the fact that a covenant marriage is a commitment for life, a discussion of the obligation to seek marital counseling in times of marital difficulties, and a discussion of the exclusive grounds for legally terminating a covenant marriage by divorce or by divorce after a judgment of separation from bed and board.
151. Id. "An affidavit by the parties that they have received premarital counseling from a priest, minister, rabbi, clerk of the Religious Society of Friends, any clergyman of any religious sect. . . ." See supra text accompanying note 106; Coolidge, supra note 67, at 38. These mediating structures or "communities" that mediate between the individual and the state or the market need nourishing and have long been the gen-eral concern of communitarians, such as Mary Ann Glendon. The family is the first community a human being knows so it is of the ultimate importance. See SEEDBEDS, supra note 71.
152. See Doherty, supra note 105; Kramer, supra note 5, at A23.
153. FLA. STAT. §§ 741.32, 61.31 (as added by H.R. 1585 (Fla. 1990)): 741.32. Covenant marriage. - There is created in the state a union between man and woman to be known as "covenant marriage." In order to be eligible to enter into a covenant marriage, each party shall make a declaration of intent to do so upon application for a marriage license. The declaration of intent shall contain the following: (1) Written permission of both parents of both parties, unless deceased at the time of the application, or unless extraordinary circumstances render written permission untenable. (2) Presentation of proof that both parties have attended premarital counseling by a clergyman or marriage counselor, which premarital counseling included a discussion of the seriousness of covenant marriage. (3) Signatures of both parties on notarized documents which state: "I, . . . , do hereby declare my intent to enter into Covenant Marriage. I do so with the full understanding that a Covenant Marriage may not be dissolved except by reason of adultery. I have attended premarital counseling in good faith and understand my responsibilities to the marriage. I promise to seek counsel in times of trouble. I believe that I have chosen my life-mate wisely and have disclosed to him or her all facts that may adversely affect his or her decision to enter into this covenant with me." 61.31. Dissolution of covenant marriage. Notwithstanding any provision of this chapter to the contrary, a covenant marriage may not be dissolved except by reason of adultery. A divorce may be granted on grounds of adultery if the defendant has been guilty of adultery, but if it appears that the adultery complained of was occasioned by collusion of the parties with the intent to procure a divorce, or if it appears that both parties have been guilty of adultery, a divorce shall not be granted. . . .
154. See Margaret F. Brinig, Status, Contract and Covenant, 79 CORNELL L. REV. 1573, 1596 (1994) (reviewing MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY (1994)). "Covenant, even better than status, explains why some aspects of marriage and parenthood cannot be varied by contract. For example, spouses cannot contract around marriage's infinite duration . . . ." Id. (footnotes omitted). See also Margaret F. Brinig & June Carbone, The Reliance Interest in Marriage and Divorce, 62 TUL. L. REV. 855 (1988); June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953 (1991). Margaret F. Brinig has a book forthcoming from Harvard University Press entitled The Contract and the Covenant.
155. See Margaret F. Brinig, Status, Contract and Covenant, 79 CORNELL L. REV. 1573, 1596 (1994) (reviewing MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY (1994)). "Covenant, even better than status, explains why some aspects of marriage and parenthood cannot be varied by contract. For example, spouses cannot contract around marriage's infinite duration . . . ." Id. (footnotes omitted). See also Margaret F. Brinig & June Carbone, The Reliance Interest in Marriage and Divorce, 62 TUL. L. REV. 855 (1988); June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953 (1991). Margaret F. Brinig has a book forthcoming from Harvard University Press entitled The Contract and the Covenant.
156. See Margaret F. Brinig, Status, Contract and Covenant, 79 CORNELL L. REV. 1573, 1596 (1994) (reviewing MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY (1994)). "Covenant, even better than status, explains why some aspects of marriage and parenthood cannot be varied by contract. For example, spouses cannot contract around marriage's infinite duration . . . ." Id. (footnotes omitted). See also Margaret F. Brinig & June Carbone, The Reliance Interest in Marriage and Divorce, 62 TUL. L. REV. 855 (1988); June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953 (1991). Margaret F. Brinig has a book forthcoming from Harvard University Press entitled The Contract and the Covenant.
157. See Margaret F. Brinig, Status, Contract and Covenant, 79 CORNELL L. REV. 1573, 1596 (1994) (reviewing MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY (1994)). "Covenant, even better than status, explains why some aspects of marriage and parenthood cannot be varied by contract. For example, spouses cannot contract around marriage's infinite duration . . . ." Id. (footnotes omitted). See also Margaret F. Brinig & June Carbone, The Reliance Interest in Marriage and Divorce, 62 TUL. L. REV. 855 (1988); June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953 (1991). Margaret F. Brinig has a book forthcoming from Harvard University Press entitled The Contract and the Covenant.
158. See Amitai Etzioni, How to Make Marriage Matter, TIME, Sept. 6, 1993, at 76. The Communitarian Network has now produced a booklet entitled OPPORTUNING VIRTUE: THE LESSONS TO BE LEARNED FROM LOUISIANA'S COVENANT MARRIAGE LAW: A COMMUNITARIAN REPORT (Amitai Etzioni & Peter Rubin eds., 1997). The publication consists essentially of William Galston, Making Divorce Harder is Better, WASHINGTON POST, Aug. 10, 1997, at C3; Amitai Etzioni, Marriage With No Easy Outs, N.Y. TIMES, Aug. 13, 1997; Amitai Etzioni, Give Couples the Tools to Make Marriage Last, USA TODAY, Nov. 18, 1996, at 25A; Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990). In the introduction to the publication, the editors also refer to an article by Margaret Brinig and Steven M. Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869 (1994). See also WILLIAM A. GALSTON, PROGRESSIVE FAMILY POLICY FOR THE TWENTY-FIRST CENTURY, BUILDING THE BRIDGE: 10 BIG IDEAS TO TRANSFORM AMERICA, 149, 156 (Will Marshall ed., 1997).
159. See Amitai Etzioni, How to Make Marriage Matter, TIME, Sept. 6, 1993, at 76. The Communitarian Network has now produced a booklet entitled OPPORTUNING VIRTUE: THE LESSONS TO BE LEARNED FROM LOUISIANA'S COVENANT MARRIAGE LAW: A COMMUNITARIAN REPORT (Amitai Etzioni & Peter Rubin eds., 1997). The publication consists essentially of William Galston, Making Divorce Harder is Better, WASHINGTON POST, Aug. 10, 1997, at C3; Amitai Etzioni, Marriage With No Easy Outs, N.Y. TIMES, Aug. 13, 1997; Amitai Etzioni, Give Couples the Tools to Make Marriage Last, USA TODAY, Nov. 18, 1996, at 25A; Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990). In the introduction to the publication, the editors also refer to an article by Margaret Brinig and Steven M. Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869 (1994). See also WILLIAM A. GALSTON, PROGRESSIVE FAMILY POLICY FOR THE TWENTY-FIRST CENTURY, BUILDING THE BRIDGE: 10 BIG IDEAS TO TRANSFORM AMERICA, 149, 156 (Will Marshall ed., 1997).
160. See Amitai Etzioni, How to Make Marriage Matter, TIME, Sept. 6, 1993, at 76. The Communitarian Network has now produced a booklet entitled OPPORTUNING VIRTUE: THE LESSONS TO BE LEARNED FROM LOUISIANA'S COVENANT MARRIAGE LAW: A COMMUNITARIAN REPORT (Amitai Etzioni & Peter Rubin eds., 1997). The publication consists essentially of William Galston, Making Divorce Harder is Better, WASHINGTON POST, Aug. 10, 1997, at C3; Amitai Etzioni, Marriage With No Easy Outs, N.Y. TIMES, Aug. 13, 1997; Amitai Etzioni, Give Couples the Tools to Make Marriage Last, USA TODAY, Nov. 18, 1996, at 25A; Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990). In the introduction to the publication, the editors also refer to an article by
161. See Amitai Etzioni, How to Make Marriage Matter, TIME, Sept. 6, 1993, at 76. The Communitarian Network has now produced a booklet entitled OPPORTUNING VIRTUE: THE LESSONS TO BE LEARNED FROM LOUISIANA'S COVENANT MARRIAGE LAW: A COMMUNITARIAN REPORT (Amitai Etzioni & Peter Rubin eds., 1997). The publication consists essentially of William Galston, Making Divorce Harder is Better, WASHINGTON POST, Aug. 10, 1997, at C3; Amitai Etzioni, Marriage With No Easy Outs, N.Y. TIMES, Aug. 13, 1997; Amitai Etzioni, Give Couples the Tools to Make Marriage Last, USA TODAY, Nov. 18, 1996, at 25A; Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990). In the introduction to the publication, the editors also refer to an article by Margaret Brinig and Steven M. Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869 (1994). See also WILLIAM A. GALSTON, PROGRESSIVE FAMILY POLICY FOR THE TWENTY-FIRST CENTURY, BUILDING THE BRIDGE: 10 BIG IDEAS TO TRANSFORM AMERICA, 149, 156 (Will Marshall ed., 1997).
162. See Amitai Etzioni, How to Make Marriage Matter, TIME, Sept. 6, 1993, at 76. The Communitarian Network has now produced a booklet entitled OPPORTUNING VIRTUE: THE LESSONS TO BE LEARNED FROM LOUISIANA'S COVENANT MARRIAGE LAW: A COMMUNITARIAN REPORT (Amitai Etzioni & Peter Rubin eds., 1997). The publication consists essentially of William Galston, Making Divorce Harder is Better, WASHINGTON POST, Aug. 10, 1997, at C3; Amitai Etzioni, Marriage With No Easy Outs, N.Y. TIMES, Aug. 13, 1997; Amitai Etzioni, Give Couples the Tools to Make Marriage Last, USA TODAY, Nov. 18, 1996, at 25A; Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990). In the introduction to the publication, the editors also refer to an article by Margaret Brinig and Steven M. Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869 (1994). See also WILLIAM A. GALSTON, PROGRESSIVE FAMILY POLICY FOR THE TWENTY-FIRST CENTURY, BUILDING THE BRIDGE: 10 BIG IDEAS TO TRANSFORM AMERICA, 149, 156 (Will Marshall ed., 1997).
163. See Amitai Etzioni, How to Make Marriage Matter, TIME, Sept. 6, 1993, at 76. The Communitarian Network has now produced a booklet entitled OPPORTUNING VIRTUE: THE LESSONS TO BE LEARNED FROM LOUISIANA'S COVENANT MARRIAGE LAW: A COMMUNITARIAN REPORT (Amitai Etzioni & Peter Rubin eds., 1997). The publication consists essentially of William Galston, Making Divorce Harder is Better, WASHINGTON POST, Aug. 10, 1997, at C3; Amitai Etzioni, Marriage With No Easy Outs, N.Y. TIMES, Aug. 13, 1997; Amitai Etzioni, Give Couples the Tools to Make Marriage Last, USA TODAY, Nov. 18, 1996, at 25A; Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990). In the introduction to the publication, the editors also refer to an article by Margaret Brinig and Steven M. Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869 (1994). See also WILLIAM A. GALSTON, PROGRESSIVE FAMILY POLICY FOR THE TWENTY-FIRST CENTURY, BUILDING THE BRIDGE: 10 BIG IDEAS TO TRANSFORM AMERICA, 149, 156 (Will Marshall ed., 1997).
164. See Amitai Etzioni, How to Make Marriage Matter, TIME, Sept. 6, 1993, at 76. The Communitarian Network has now produced a booklet entitled OPPORTUNING VIRTUE: THE LESSONS TO BE LEARNED FROM LOUISIANA'S COVENANT MARRIAGE LAW: A COMMUNITARIAN REPORT (Amitai Etzioni & Peter Rubin eds., 1997). The publication consists essentially of William Galston, Making Divorce Harder is Better, WASHINGTON POST, Aug. 10, 1997, at C3; Amitai Etzioni, Marriage With No Easy Outs, N.Y. TIMES, Aug. 13, 1997; Amitai Etzioni, Give Couples the Tools to Make Marriage Last, USA TODAY, Nov. 18, 1996, at 25A; Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990). In the introduction to the publication, the editors also refer to an article by Margaret Brinig and Steven M. Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869 (1994). See also WILLIAM A. GALSTON, PROGRESSIVE FAMILY POLICY FOR THE TWENTY-FIRST CENTURY, BUILDING THE BRIDGE: 10 BIG IDEAS TO TRANSFORM AMERICA, 149, 156 (Will Marshall ed., 1997).
165. See Amitai Etzioni, How to Make Marriage Matter, TIME, Sept. 6, 1993, at 76. The Communitarian Network has now produced a booklet entitled OPPORTUNING VIRTUE: THE LESSONS TO BE LEARNED FROM LOUISIANA'S COVENANT MARRIAGE LAW: A COMMUNITARIAN REPORT (Amitai Etzioni & Peter Rubin eds., 1997). The publication consists essentially of William Galston, Making Divorce Harder is Better, WASHINGTON POST, Aug. 10, 1997, at C3; Amitai Etzioni, Marriage With No Easy Outs, N.Y. TIMES, Aug. 13, 1997; Amitai Etzioni, Give Couples the Tools to Make Marriage Last, USA TODAY, Nov. 18, 1996, at 25A; Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9 (1990). In the introduction to the publication, the editors also refer to an article by Margaret Brinig and Steven M. Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869 (1994). See also WILLIAM A. GALSTON, PROGRESSIVE FAMILY POLICY FOR THE TWENTY-FIRST CENTURY, BUILDING THE BRIDGE: 10 BIG IDEAS TO TRANSFORM AMERICA, 149, 156 (Will Marshall ed., 1997).
166. See Wolfe, supra note 52, at 37, 38: The proposal is this: let us amend state marriage laws so as to make it possible for a man and woman to choose freely to enter into an indissoluble marriage. Note: possible, not mandatory. . . . As the current legal order stands, all American marriages can be dissolved by divorce decrees. . . . Yet some people might want to have that unbreakable, legally enforceable bond for themselves, on various grounds . . . . This could be viewed as one "strategy" for maximizing the likelihood of a successful marriage. Liberal divorce law not only rejects this strategy as a general one for all marriages - it rules it out even for those who would freely choose it. For Christian authority stating that divorce and remarriage is impermissible, see Mark 10:2-12. See also an identical proposal by French law professor Léon Mazeaud in 1945, supra note 90.
167. The fact that it is a choice is not of comfort to those who oppose restoration of objective fault to the marital relationship or to those who oppose making divorce more difficult. Wolfe, supra note 52, at 39, summarizes the arguments by "liberals" opposing the choice of a more binding marriage contract as follows: [S]ocial liberals have a great deal of difficulty accepting restrictions on divorce, because those who suffer from such restrictions are immediately and easily observable, while the benefits of such restrictions (because they flow from indirect effects on incentives) are not as easily identifiable. The common element underlying the two views is misplaced - because it is based on excessively short-term views - compassion.
168. The Catholic Bishops of Louisiana issued the following Pastoral Statement on October 29, 1997: The legislature and the citizens of the state of Louisiana have manifested a commendable concern for the permanence and stability of marriage by enacting the Covenant Marriage Act. Strong and stable marriages are crucial for children and a healthy society. Because there are elements in this particular Covenant Marriage Act which require those preparing couples for marriage to offer instruction on divorce contrary to the Church's teaching, Catholic ministers preparing couples for marriage will concentrate their focus on the Church's responsibility and teaching. The task to offer guidance with regard to the specifics of the Covenant Marriage Act will then be left to those who render this service in the name of the State. It would be inappropriate for those ministering to couples preparing for marriage in the Catholic Church to confuse or obscure the integrity of the [C]hurch's teaching and discipline by also providing this service, contradictory to [C]hurch teaching and mandated by this state law. For these reasons, the Catholic Bishops of the state of Louisiana will ask our parishes to focus on the marriage preparation proper to the Church, support the aims of the Covenant Marriage Act but relegate to state-sanctioned counsellors the role of handling the state-required preparation for those who choose to use the [C]ovenant [M]arriage license. Parishes and the State's New Covenant Marriage License, 27 ORIGINS 368 (1997). The Catholic Bishops are continuing discussion of the legislation on Covenant Marriage for the purpose of considering curative legislation. Their first meeting was held on November 25, 1997, and ended without definitive action. The next legislative session during which amendments could be offered to sever the divorce instruction from the pre-marital counseling would be 1999.
169. In addition to the Pastoral Statement by the Louisiana Catholic Bishops (see supra note 115), the Louisiana Baptist Convention (Southern Baptist) passed the following resolution on November 11, 1997: WHEREAS, In the regular session of the 1997 Louisiana Legislature, there was passed what some have labeled the Covenant Marriage Act; and WHEREAS, The so-called no-fault divorce laws in Louisiana and throughout the United States, generally are considered by many to be a miserable failure; and WHEREAS, The intent of the legislation is to strengthen the God given institution of marriage and to move the legal standards for marriage and divorce closer to the standards of the Word of God; THEREFORE, BE IT RESOLVED, That the messengers of this 150th annual session of the Louisiana Baptist Convention, meeting November 10-11, 1997, in Alexandria, Louisiana, encourage the Family Development Department of the Executive Board of the Louisiana Baptist Convention to make materials available to pastors and churches concerning Covenant Marriage; BE IT FINALLY RESOLVED, That we encourage pastors and churches to become familiar with the law concerning Covenant Marriage and to use any tool available to strengthen the institution of marriage among the people to whom we minister. Lousiana Baptist Convention, Resolution: Covenant Marriage (Nov. 11, 1997) (unpublished resolution, on file with the Lousiana Baptist Convention). The Baptist Missionary Association of Louisiana unanimously adopted a similar resolution, specifically encouraging its member churches and pastors "to marry those who choose the Covenant Marriage as opposed to the Contract Marriage." Furthermore, other evangelical Protestant denominations, such as the Assembly of God and Pentecostal churches, are very supportive of the legislation. Episcopal Bishop-Elect Charles Jenkins of Baton Rouge criticized the law: By bringing couples in covenant marriages back to a fault-based divorce system, with its cynicism and occasional collusion for the sake of a divorce, "It goes back to the bad old days regarding divorce and dissolution of a household," [Bishop] Jenkins said. "We've been there; it doesn't work. Those old ideas compromised the moral character of couples; they compromised the integrity of judges, courts and attorneys." Bruce Nolan, Bishops Back Off Covenant Marriage, TIMES-PICAYUNE, Oct. 30, 1997, at A1. According to the same article Jewish leaders already had signaled little support for the new civil contract, but no official statement was ever issued or reported identifying the Jewish leaders. For the position of the Bishop of the Methodist Church, see supra note 106.
170. See LA. REV. STAT. ANN. § 9:273(A) (West Supp. 1998) (as amended by 1997 La. Acts 1380, § 3); see also supra note 92.
171. See LA. REV. STAT. ANN. 9:307(A) (2) (b) (West Supp. 1998) (as amended by 1997 La. Acts 1380, § 3) (emphasis added): A notarized attestation, signed by the counselor and attached to or included in the parties' affidavit, confirming that the parties were counseled as to the nature and purpose of the marriage and the grounds for termination thereof and an acknowledging that the counselor provided to the parties the informational pamphlet developed and promulgated by the office of the attorney general, which pamphlet entitled the Covenant Marriage Act provides a full explanation of the terms and conditions of a covenant marriage. See also 1997 La. Acts 1380, § 5: The office of attorney general, Department of Justice shall, prior to August 15, 1997, promulgate an informational pamphlet, entitled "Covenant Marriage Act," which shall outline in sufficient detail the consequences of entering into a covenant marriage. The informational pamphlet shall be made available to any counselor who provides marriage counseling as provided for by this Act.
172. See LA. REV. STAT. ANN. § 9:275 (West Supp. 1998) (as amended by 1997 La. Acts 1380, § 3): On or after August 15, 1997, married couples may execute a declaration of intent to designate their marriage as a covenant marriage to be governed by the laws relative thereto. B. (1) This declaration of intent in the form and containing the contents required by Subsection C of this Section must be presented to the officer who issued the couple's marriage license and with whom the couple's marriage certificate is filed. [provision for couples married outside of Louisiana] The officer shall make a notation on the marriage certificate of the declaration of intent of a covenant marriage and attach a copy of the declaration to the certificate. . . . . C. (1) A declaration of intent to designate a marriage as a covenant marriage shall contain all of the following: (a) A recitation by the parties to the following effect: A COVENANT MARRIAGE We do solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for so long as they both may live. We understand the nature, purpose, and responsibilities of marriage. We have read the Covenant Marriage Act, and we understand that a Covenant Marriage is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling. With full knowledge of what this commitment means, we do hereby declare that our marriage will be bound by Louisiana law on Covenant Marriage, and we renew our promise to love, honor, and care for one another as husband and wife for the rest of our lives. (b) (i) An affidavit by the parties that they have discussed their intent to designate their marriage as a covenant marriage with a priest, minister, rabbi, clerk of the Religious Society of Friends, any clergyman of any religious sect, or a marriage counselor, which included a discussion of the obli-gation to seek marital counseling in times of marital difficulties and the exclusive grounds for legally terminating covenant marriage by divorce or by divorce after a judgment of separation from bed and board. (ii) A notarized attestation, signed by the counselor and attached to the parties' affidavit, acknowledging that the counselor provided to the parties the information pamphlet developed and promulgated by the office of the attorney general, which pamphlet entitled the Covenant Marriage Act provides a full explanation of the terms and conditions of a covenant marriage. (iii) The signature of both parties witnessed by a notary. (2) The declaration shall contain two separate documents, the recitation and the affidavit, the latter of which shall include the attestation either included therein or attached thereto. The recitation shall be prepared in duplicate originals, one of which shall be retained by the parties and the other, together with the affidavit and attestation, shall be filed as provided in Subsection B of this Section.
173. Mark 10:2-12.