Friday, April 13, 2007

No One Is Married!

Respect to the guys at Don't Marry for this awesome website.

This ties in nicely with my Tyranny of Tolerance posts.

No one is married.

According to the site's author, the divorce laws in Texas are being applied incorrectly.

It seems that when one party files a no fault divorce, the non-petitioning spouse has no legal protections whatsoever!

You don't say!!

The eminent scholar, Dr. Stephen Baskerville writes in his paper, The Real Danger of Same Sex Marriage that:

...Some three decades ago, while few were paying attention, the Western world embarked on what may turn out to be the boldest social experiment in its history. With no public discussion of the possible consequences, laws were enacted in virtually every jurisdiction that effectively ended marriage as a legal contract. Today it is not possible to form a binding agreement to create a family.

The result was more than the removal of government from enforcement of the contract; it allowed the government to enforce the abrogation of the contract. Regardless of the terms by which a marriage is entered, government officials can, at the request of one spouse, simply dissolve it (and the household created by it) over the objection of the other with no penalty to the moving party. Gallagher aptly titled her 1996 book, The Abolition of Marriage. It is difficult to see how legalizing gay marriage can weaken an institution that has already been legally “abolished,” nor how a constitutional amendment can protect a contract that is now unenforceable in law.

In contrast to same-sex marriage, no-fault divorce was never subject to a public debate. Gallagher once attributed this silence to “political cowardice”: “Opposing gay marriage or gays in the military is for Republicans an easy, juicy, risk-free issue,” she complained. “The message [is] that at all costs we should keep divorce off the political agenda.” No American politician of national stature has seriously challenged involuntary divorce. “Democrats did not want to anger their large constituency among women who saw easy divorce as a hard-won freedom and prerogative,” writes Barbara Dafoe Whitehead. “Republicans did not want to alienate their upscale constituents or their libertarian wing, both of whom tended to favor easy divorce, nor did they want to call attention to the divorces among their own leadership.”[39] In his famous denunciation of single parenthood, Vice President Dan Quayle was careful to make clear, “I am not talking about a situation where there is a divorce.”[40] The exception proves the rule. When the late Pope John Paul II spoke out against divorce in January 2002, he was roundly criticized from both the right and the left.[41]

Why this deafening silence, even among political figures who now claim to be defending marriage?

In the years since it was enacted, no-fault divorce has grown into a huge state and private machinery; in fact, few enterprises have forged so intimate and elaborate a public-private symbiosis. Thirty years of unrestrained divorce has created vast interests with a stake in encouraging it. David Schramm cautiously estimates that divorce costs the public $33.3 billion annually.[42]

But divorce is more than a lucrative industry; it is also a vast governmental regime. Divorce and custody are the cash cow of the judiciary, constituting some 35-50% of civil litigation,[43] and also bring employment and earnings to a host of executive and legislative officials, plus private hangers-on: lawyers, psychotherapists, mediators, counselors, social workers, child support agents, and more. Divorce litigation fuels well-known lines of political and judicial patronage.[44] “The judge occupies a vital position...because of his control over lucrative patronage positions,” according to Herbert Jacob, where appointments “are generally passed out to the judge’s political cronies or to persons who can help his private practice.”[45] Divorce also fills state and local government coffers with federal money for a host of divorce-related social problems. So entrenched has divorce become within our political economy and political culture that even its critics seem to have developed a stake in having something to bemoan. Hardly anyone has an incentive to bring it under control.

Indeed, divorce and unmarried childbearing may have political implications we are only beginning to understand, since they act as major engines for the overall expansion of government power at all levels. As Daniels and Horn point out, family dissolution breeds a host of societal ills for government to solve. Virtually every major social pathology, from violent crime to drug abuse to truancy, is directly attributable to family breakdown and fatherless homes more than any single factor, surpassing race and poverty.[46]

While this has long been recognized within social policy, the political implications have never been thoroughly pursued. “If we want less government, we must have stronger families,” President Jimmy Carter once said, “for government steps in by necessity when families have failed.”[47] But Carter may have perceived the cause-and-effect backward, for it follows that the state has a self-interest in failed families and a motive to step in and declare failure when given the opportunity. This is precisely what divorce courts do: “No-fault divorce gave judges, at the request of one-half of the couple, the right to decide when a marriage had irretrievably broken down.”[48]

In ironic contrast to marriage, divorce is often defended as a “private” matter and therefore immune from public scrutiny; some even describe it as a “civil liberty.”[49] In practice, divorce raises fundamental questions about the reach of the state into private life that have never been confronted. Far more than marriage, divorce by its nature requires active and almost incessant government intervention. Marriage creates a private household, which may or may not necessitate signing some legal documents. Divorce dissolves not only a marriage, but also the private household formed by it, usually against the wishes of one spouse. It inevitably involves state functionaries — including police and prisons — to enforce the post-marriage order. Otherwise, one spouse might continue to claim the protections and prerogatives of private life: the right to live in the common home, to possess the common property, or — most vexing of all — to parent the common children.

Few stopped to consider the implications of laws that shifted the breakup of private households from a voluntary to an involuntary process. If marriage is not a wholly private affair, involuntary divorce by its nature requires constant supervision over private life by state officials. Divorce by mutual agreement carries few consequences. But mutual agreement governs only about 20% of divorces; in the remaining 80% the government assumes control over the private life of at least one individual without that individual’s consent — and when he or she may be unimpeachable before the law.[50] In these circumstances, unilateral divorce involves state agents forcibly removing people from their homes, confiscating their property, and separating them from their children. It poses an inherent threat to the inviolability of not only marriage, but the very concept of private life.

The involvement of the judiciary, with its handmaid, the penal apparatus, indicates how marriage dissolution blurs distinctions the justice system once delineated carefully: private versus public, civil versus criminal, therapy versus justice, sin versus crime. No-fault divorce introduced novel legal concepts, such as the principle that one could be decreed guilty of violating an agreement that one had, in fact, not violated. “According to therapeutic precepts, the fault for marital breakup must be shared, even when one spouse unilaterally seeks a divorce,” observes Whitehead. “Many husbands and wives who did not seek or want divorce were stunned to learn...that they were equally ‘at fault’ in the dissolution of their marriages.”[51] The “fault” that was ostensibly thrown out the front door of divorce proceedings re-entered through the back, but now without precise definition. The judiciary was expanded from its traditional role of punishing crime or tort to punishing personal imperfections and private differences: suddenly, one could be summoned to court without having committed any legal infraction; the verdict was pre-determined before any evidence was examined; and one could be found “guilty” of things that were not illegal. “Lawmakers eliminated a useful inquiry process and replaced it with an automatic outcome,” writes Judy Parejko. “No other court process is so devoid of recourse for a defendant. When one spouse files for divorce, his/her spouse is automatically found ‘guilty’ of irreconcilable differences and is not allowed a defense.”[52]

Though marriage ostensibly falls under civil law, the logic quickly extended into the criminal realm. The “automatic outcome” expanded into what effectively became a presumption of guilt against the involuntarily divorced spouse (“defendant”). Yet the due process protections of formal criminal proceedings did not apply, so involuntary litigants could be criminalized without any action on their part and in ways they were powerless to avoid. In some jurisdictions, the defendant in a divorce case is the only party in the courtroom without legal immunity.[53]

Politically, no-fault divorce did much more than allow families to self-destruct. It permitted the state in the person of a single judge to assume jurisdiction over the private lives of citizens who were minding their own business and turn otherwise lawful private behavior into crimes. Previously, a citizen could be incarcerated only following conviction by a jury for willfully violating a specific statute, passed with citizen input and after deliberation by elected legislators, that applied equally to all. Suddenly, a citizen could be arrested and jailed without trial for failing to live in conformity with an order, formulated in a matter of minutes from limited information by an unelected judge, that applied to no one but himself (it is usually, for reasons we will see, the man) and whose provisions might well be beyond his ability to obey.[54] In effect, a personalized criminal code is legislated ad hoc around each divorced spouse, subjecting him or her to arrest for doing what anyone else may lawfully do.

Unilateral divorce thus placed the family in a legal-political status precisely the opposite of the original purpose of marriage. Far from preserving a private sphere of life immune from state intervention, involuntary divorce opened private lives to unprecedented state control. Thus the irony of those who question why gay partners should wish to have the “benefits” of marriage and thus open their private lives to the increasingly conspicuous horrors of family law proceedings.[55] Indeed, a California bill legalizing same-sex marriage was nicknamed the “gay divorce law,” because it would force individuals wishing to part company into court proceedings and to spend money on lawyers.[56] Previously, in the eyes of the law, such a couple was simply two individuals in a household, whose sexual “intimacy” was a matter of official indifference. With marriage or civil unions, they become spouses or “intimate partners” into whose private lives the state may insert its coercive authority at the mere invitation of either, with any grievance or none...

There you have it.

Once again we find that... divorce laws hurt more people than they help.

So Truthseekers... check out the No One is Married page. It's got some very useful information.


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