A comment from Randall Parker to my earlier post (inspired by his discussion of marriage drugs) has encouraged me to explore further the issue of entanglement between marriage and state.

The history of marriage (and divorce) in the United States seems hopelessly intertwined with earlier religious law, and its later enforcement by secular authority:

Before 1857 in Britain, divorce and freedom to remarry could be obtained only by an act of Parliament following a separation decree given by an ecclesiastical court on the basis of some wrong (such as adultery or abandonment) done by the defendant to the plaintiff. This system, based on the premise that valid marriages may not be dissolved, reflected the Roman Catholic origins of English domestic-relations law.

The early American colonists brought this fault-based divorce system with them to the New World. Because they feared the moral dangers posed by a married yet separated state, they made it possible to obtain an absolute divorce, but only on the traditional English grounds for separation. Basically, however, the conceptual and legal structure of the marriage-dissolution system remained as it had been created and maintained for a divorceless society.

Ecclesiastical courts were abolished in Britain in 1857, and absolute divorce was then instituted. Incorporated into the law of absolute divorce were the fault-based notions that had grown up around separation. These notions continued to affect British and American divorce law and administration for more than a century.

Since then, something called "Family Law" has, in my opinion, metastasized to the point where people are afraid to marry.

Yet as Matt Welch made clear in a recent Reason article, there is no escape from the long arm of Family Fascism. Even if you have never married or fathered any children, if you are a man, you can be summarily ruined for life without ever being personally served with process -- all because some bureaucrat enters your name into a government computer.

[W]hen the government accuses you of fathering a child, no matter how flimsy the evidence, you are one month away from having your life wrecked. Federal law gives a man just 30 days to file a written challenge; if he doesn’t, he is presumed guilty. And once that steamroller of justice starts rolling, dozens of statutory lubricants help make it extremely difficult, and prohibitively expensive, to stop -- even, in most cases, if there’s conclusive DNA proof that the man is not the child’s father. (via Glenn Reynolds.)

A former family practitioner, Venomous Kate, discusses how the "family law" system works in practice:

After handling over 400 divorces, at least half of which involved children, and half as many child custody cases throughout the early years of my law practice, I have very, very little respect for family court judges. For the most part, I represented fathers because I was sick of seeing men screwed over by the legal system, their relationships with their children destroyed and their incomes devastated by women who knew how to work the system. Time and again I watched one-sided custodial determinations justified by something as morally irrelevant as whether dad allowed his toddler to play "boxing" with one of those inflatable clown toys that bounce back when knocked over or whether he let his pre-teen daughter watch PG-13 movies at his house - with him in the room - even though Mom thought that was inappropriate.

I submit that most rational men (and many women too) who read the above would think twice before ever putting themselves in a position where it could happen to them.

Most little boys these days grow up seeing pictures of "deadbeat dads" on the walls of post offices (where bank robbers used to be).

Would you want to grow up and be wanted?

As this historical summary shows, during the 20th Century, "family law" in the United States consisted largely of a battleground between moral conservatives and feminists. The former had (and still have) the goal of decreasing the divorce rate, while the latter seek to elevate the status of women.

Might we have ended up with the worst of both worlds? It has long been my theory that when two sides battle it out, you don't end up with "either/or" -- but you end up with a mixture of both. Unfortunately, because of the unfortunate tendency of activists to dominate politics, the reasonable people -- the people with too much common sense to get involved in no-win shouting matches with activists but who are the most affected by the result -- are never heard from.

Furthermore, the evidence shows that as the activists battled it out, the marriage rate declined:

Americans are less likely to marry than ever before, according to a new study, and fewer people who do marry report being "very happy" in their marriages.

The report, released yesterday by Rutgers University's National Marriage Project and touted as a benchmark compilation of statistics and surveys, found that the nation's marriage rate has dipped by 43 percent in the past four decades -- from 87.5 marriages per 1,000 unmarried women in 1960 to 49.7 marriages in 1996 -- leaving it at its lowest point in recorded history.

The percentage of married people who reported being "very happy" in their marriages fell from 53.5 in 1973-76 to 37.8 in 1996.

I submit that moral conservatism plus feminism is a bad mix. Throw into that hopper the demands of gay activists that they too have the "right" to be included in the "Family Fascism " equation -- plus the demands of moral conservatives that same sex couples be written out of the Constitution -- and the question of whether marriage is a political act looms ever larger. Is this good?

I am still puzzled over how something that ought to be the business of two people ever became an "institution" in the first place, but I think it's way out of hand. I can't prove that the declining marriage rate is related to all of this, but common sense suggests to me that it is.

A number of my friends are happily married. But others (both heterosexual and homosexual) consider "marriage" and "family" to be hot-button language. It's almost like the gun issue.

I think there are still people who would enjoy being married, but who fear the institution because they fear the government.

(But I also know people who'd love to have a gun, but fear guns because they don't want the government to know they have one.)

UPDATE: Andrew Sullivan wonders why the New York Times mischaracterizes the most radical version of the so-called "Marriage Initiative" as the "moderate" measure, and assumes the Times must not have read the following text:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

Talk about federalizing marriage! (And these people call themselves "conservative"?)

One might wonder why the New York Times is helping along such a radical measure by calling it moderate. Sullivan, quite charitably, attributes the misreporting to ignorance.

There's them that laughs, but knows better.......