Wednesday, February 16, 2005

Combining Covenant Marriage and Mass Weddings

Click on the title to read the New York Times article about the Covenant Marriage movement in Arkansas. I did my law review "comment" on Covenant Marriage when it first emerged in Louisiana in the late 1990's, but never published it, unfortunately (for non-lawyers, a law review "comment" is a 60-70 page paper students typically write as part of the requirement for membership on the editorial board of their law school's official academic journal - in my case, the Connecticut Law Review). I've also mentioned it before on this blog (click here). Covenant Marriage is basically a voluntary but legally-binding waiver of one's right to a no-fault divorce. Of course, everyone is free to waive your right to a no-fault divorce by simply choosing to stay married; this is a legal mechanism that allows people to bind themselves so they cannot change their minds later (or risk that spouses changing their minds). Thanks to student Darcy Douglas for sending me the NYT article. For another law prof blogging about this issue, click here.

This NYT article notes a bizarre but predictable turn the movement has taken, a hybridization between the mass-weddings Sun Myung Moon conducted in the 1980's and the individualized legal waiver of one's right to a no-fault divorce. Apparently thousands of people (mostly associated with one or two megachurches) did a collective ceremony to invoke the Covenant Marriage against themselves all at once (the proper preposition from a legal standpoint). Click on READ MORE for my true feelings about this....

My opinion: I have (admittedly unfashionable) Puritanical views about marriage and divorce, of course, and I share the concerns of some leading economists that no-fault divorce has impoverished as many people as it has liberated (and my students know that I am skeptical about any so-called "divorce rate" that is used to either justify or criticize the current legal regime). That being said, I am doubtful about the Covenant Marriage movement. First, there is the old question of why we need legal mechanisms that function like Ulysses' ropes, which he used to bind himself to his ship's mast before he sailed near the Sirens. Wouldn't it make enough of a "statement" if these couples simply nurtured healthy marriage relationships at home and stayed married by choice? Why the need to invoke legal sanctions against oneself, merely to prevent ourselves from changing our minds later? I understand the practice of exacting binding promises from other parties - like in a prenuptial agreement - but this seems mostly directed at oneself. (if the goal is to keep the other person from ever leaving you, you have alternative measures: create an onerous pre-nup, or be more picky in choosing a mate, etc.).

Second, I know there is a tendency for evangelical Christians to hale anything that appears to bolster biblical models for marriage and sexuality, but this particular mechanism seems to encroach a bit on the prohibitions against self-invoked sanctions in Matt. 5:33-37. Why does a real Christian need to attach his or her vow or promise to something secular, like legal sanctions? Why not just keep your word? I can have my Puritanical views and keep my word at the same time. I do not need a legal mechanism to validate my faith or the integrity of my promises. My faith can only be validated by its inherent veracity. I confess I have doubts about any "faith" that needs some kind of affirmation from secular bystanders, or the government, in order to be strengthened or legitimized.

At this point I anticipate the objection that the value of a Covenant Marriage is not to bind oneself with imprecatory vows, but rather to bind one's spouse to stay in the marriage in case the person wants out later. Presumably this would occur mostly in cases of apostasy - it seems unlikely that an "unbeliever" would assent to self-restriction in the first place, and unlikely that a person who is still a faithful adherent would seek to breach it. The problem being addressed, then, is the Christian spouse who later backslides spiritually and consequently quits the marriage. Again, however, using a legal device to prevent such actions runs aground on the Bible itself. Although the Bible forbids believers from initiating divorces against each other, it also commands believers to let an unbelieving spouse out of the marriage, graciously, if they want out. (See 1 Cor. 7:15). The person abandoning the marriage may be in the wrong, but they're supposed to be free to go. In this sense, it would seem unbiblical - disobedient to Scripture - to try to use the Covenant Marriage vows as leverage to keep an embittered person in the marriage, even if that person was "wrong" for wanting out in the first place.

Third, I have big doubts about whether this Covenant would hold up legally if it was challenged in court. I studied the Louisiana Covenant Marriage statute carefully and found no provisions for fraud or duress, just required disclosures about previous sexual history and communicable diseases. These disclosures were indeed mandatory, but there was no remedy where someone lied. It was unclear whether pre-marriage deception would be grounds for dissolution of a Covenant Marriage (it was not on the list of enumerated justifications for dissolution). There is also the question of coercion or duress. Disgruntled former church members often claim that their previous church coerced them into all sorts of things (usually various forms of self-denial and unworldiness, but sometimes unpleasant marriages to church members). It is easy to imagine a person who wants "out" of a covenant marriage, who has also lost faith in their church or denomination (for whatever reason), and now claims that they were coerced into this thing by their church leaders - that it was a requirement for membership, or a requirement for having a wedding inside the church, or the only way to avoid severe spiritual stigma, or whatever. And I can imagine many judges sympathizing with this assertion; I would sympathize, and I'm a believer. It is easier still to imagine later claims of coercion, and sympathy for such claims, when the plaintiff gave her rushed assent at high-pressure gathering of 5,000 people, a mass-vowing ceremony. The big crowds certainly garner more media attention for the cause (I confess I wish the New York Times would cover events at my little church!), but the sensational environment may undermine the legal sustainability of the vows themselves.

Christian intellectuals, thinkers, and leaders may undermine the credibility of the Cause when they cheer anything that even "looks like" it leans in a traditional direction. There should be more to Christianity than turning back the clock to 1950, even if the culture has taken some bad turns (even horrible turns) in the meantime. A more searching analysis is warranted.