Law and Marriage

These days I settle for small and subtle signs of progress. Take the story in
the February 15 Washington Post on the demise of a proposal in the
Virginia legislature that would have required public-school students to recite
the Pledge of Allegiance. State Senator Warren E. Barry--the outraged sponsor of
the legislation, which was amended by his senate colleagues--blamed "libertarians
and liberals" on the education committee of Virginia's house of representatives
for softening his bill by exempting students who had a religious or
philosophical objection to reciting the pledge. Withdrawing the defanged bill in
protest, Barry called the 23 members of the committee "spineless pinkos," which,
the Post felt compelled to explain, is "a Cold War reference to Communist
sympathizers." Surely we've progressed a little if a phrase like "spineless
pinkos" has passed out of the vernacular.

Still, the culture of the 1950s remains appealing to some. "It may be the
twenty-first century out there, but in this house it's 1954," Tony Soprano
reminded his daughter on the HBO series The Sopranos. It's not hard to
imagine social conservatives nodding their heads in agreement (though many of
them consider the popularity of The Sopranos another sign of
civilization's decline). If newly empowered right-wing moralists prevail, it may
soon be 1954 in everybody's house.

What's most alluring to conservatives about the culture of the 1950s are the
marriage myths it helped perpetuate. My grade school readers were replete with
pictures of contented suburban, two-parent families: They lived behind white
picket fences and attended church on Sunday; the women wore dresses and high
heels at home. You can measure the divide between feminists and traditionalists
by the way they react to this vision of bliss. Feminists tend to prefer a 50
percent divorce rate to the feminine mystique that accompanied prefeminist
notions of marital stability. Traditionalists view divorce as a primary social
ill, quite literally.

"Married people live longer and healthier lives," according to newspaper
columnist Maggie Gallagher, co-author with Linda J. Waite of The Case for
A spokeswoman for the right-wing marriage movement, Gallagher
imagines that marriage "wards off death" because it promotes healthier habits:
Married people are "less likely to hang out late at night in bars, get into
fights, drink too much, or drive too fast. They save money and pay their bills,
responsibly, reducing financial stresses that undercut health." She doesn't add
that married people are a lot more likely to commit adultery. Hasn't she ever
been accosted by a drunken married man who was hanging out late at night in a

Or are philandering spouses mere anomalies? According to Gallagher, married
persons have less incentive to loiter late in bars because "to top it off, they
even have better sex, more often, than couples who are not married." Maybe
so--though the sexual satisfaction of married couples may owe something to the
high divorce rate.

But let's agree that people do derive many personal as well as economic
benefits from amicable, stable marriages. If the drive to strengthen marriage
were pragmatic, as Gallagher makes it seem, there'd be much less opposition to
gay marriages. Surely gay people and their children would also benefit from
wedded bliss, or at least wedded stability, and society would benefit in turn.
But while social-issue conservatives rally around calls for marriage education in
public schools and for laws severely restricting divorce, they rally against
legislation that would give gay couples equal rights to wed (or to work--they
also oppose equal-employment laws). "Homosexuality is a permanent, defining
issue" for the Christian right, Frederick Clarkson observes in The Public Eye,
the informative magazine of Political Research Associates.

Moralism, not a pragmatic concern for health and welfare, drives the marriage
movement. The conservative crusade to promote marriage exemplifies the
antilibertarianism of the right, exposing the hypocrisy of its demands for
smaller government and professed disdain for social engineering. The Heritage
Foundation has proposed establishing a federal "marriage office," and various
states are experimenting with their own forms of bureaucratic interference with
private life. Arizona, Arkansas, and Louisiana recognize covenant marriages:
prenuptial agreements that greatly restrict the right to divorce. (Arkansas is in
the midst of a "marital emergency," according to its governor, Mike Huckabee.)
Divorce rates are particularly high in several Bible Belt states, including
Arkansas and Oklahoma--which has budgeted $10 million for marriage counseling
and has hired "marriage ambassadors" to visit talk shows and schools; May 5 was
"Save Your Marriage before It Starts Day" for Oklahomans. Florida requires high
schools to offer classes in marriage and relationships, and many state
legislatures are considering laws that would mandate counseling before marriage
or divorce.

Conservative anxiety about marriage reflected by these measures has been
heightened by recently released census figures showing that fewer than 24 percent
of American households consist of married couples with kids. Meanwhile, the
percentage of families headed by single mothers has risen 25 percent in the past
10 years. "We're losing; there isn't any question about it," virtuecrat William
Bennett warns.

It's not surprising that the crusade to reverse these trends by promoting
traditional heterosexual marriage and restricting divorce coincides with a
retreat from feminist campaigns for freedom and economic equality. While
considering proposals for a federal marriage office, the Bush administration has
closed the White House Office for Women's Initiatives and Outreach, which served
as a liaison for women's advocacy groups. The president has appointed staunch
antifeminist opponents of affirmative action to top economic and labor jobs
(although he himself is a deft practitioner of affirmative action, as his cabinet
and court appointments show). He moved quickly to curtail abortion rights--and
even speech about abortion--by reinstituting a ban on abortion counseling by
international family-planning organizations that receive U.S. funding. Other
anti-choice initiatives will be more subtle: The proposed federal marriage office
would redirect some family-planning funding to teen-abstinence programs.

Liberals routinely condemn advocates of abstinence programs or covenant
marriages for trying to "legislate morality," but law and policy are naturally
moralistic. Equal-employment laws are not simply pragmatic economic measures;
they reflect a consensus about the immorality of discrimination--a consensus
that liberals fought hard to create. Workplace regulations in general--minimum
wage laws and health-and-safety regulations--are considered moral mandates by
many on the left. Hate-crime legislation and campus speech codes all reflect the
left's moralism; so do efforts to abolish the death penalty and to end the deeply
immoral war on drugs. So attacking right-wing moralism can be a bit misleading,
if not downright hypocritical.

I have no quarrel with efforts to use law to promote morality; that's partly
what it's for. I do object fiercely to the particular moral code that the right
embraces. (I'm not always in agreement with left-wing moralists, either,
especially when they seek to limit speech.) The current regime envisions an
ideal world in which heterosexual couples can't divorce and gay couples can't
marry, women cannot get an abortion, and even contraception is scarce, especially
for teens. Seriously ill people risk being imprisoned for using marijuana to
relieve pain and nausea and maybe even to prolong their lives. Poor people are
imprisoned and killed by the state without ever receiving fair trials. Children
will recite the Pledge of Allegiance, or else. It's not my moral vision of
liberty, or justice, for all.