Contracting out of the Culture Wars: How the Law Should Enforce and Communities of Faith Should Encourage More Enduring Marital Commitments
Aycock, Jamie Alan, Harvard Journal of Law & Public Policy
INTRODUCTION I. BACKGROUND A. Changing Conceptions of Morality and the Proper Role of Law B. Attempts to Fix Marriage 1. Legal Efforts to Strengthen Marriage 2. Non-legal Efforts to Strengthen Marriage C. Using Contract to Strengthen Marriage II. INVOLVING COMMUNITIES OF FAITH IN EXTENDING CONTRACT IN MARRIAGE III. LIMITING DIVORCE THROUGH RESTRICTED GROUNDS AND ADDED CONSEQUENCES A. Precommitment as Rational for Individuals and Communities of Faith B. Why Communities of Faith Should Encourage Precommitments C. Overcoming Challenges to Allowing a More Restrictive Marriage Regime 1. Philosophical Challenges 2. Negative Effects 3. Constitutionality Under the Establishment and Free Exercise Clauses 4. Public Policy and Contract Law IV. CONCLUSION
The culture wars that have been raging since at least the 1960s show no signs of cooling off. In fact, commentary on the red state, blue state dichotomy seems only to have heated up in recent years. Although the underlying issues of the culture wars are at play in many areas of the law (as seen in the politicization of judicial confirmations), the most intense battleground may be the area of family law because the heart of the ongoing fight is over competing visions of the family. Many writers have enlisted with one side or another, staked out a particular position, and attempted to articulate a compelling vision for America. But because each battle is seen as a zero-sum game, few authors have attempted to develop practical solutions that bridge the divergent perspectives on the family. Since no side appears anywhere close to "winning," it is imperative to develop family law solutions that bridge some of the differences.
This Article proposes that the law should enable individuals to make choices that further their particular vision of the family, without imposing that vision upon the whole of society, thus allowing pluralism in marriage law. One set of culture-warriors argues that the requirements for entering marriage should be heightened and that the duties and rights in marriage should be increased to achieve greater stability in what they consider the fundamental social institution. Another set of culture-warriors argues that individuals should be allowed to easily enter and exit marriage and that society should be especially concerned with the ongoing effects of patriarchal roles associated with this historically unjust social institution. This Article takes an approach that cuts across the divide by arguing, as others have, (1) that the role of contract in marriage should be extended for those who choose to agree to additional terms. In a sense, this approach transcends the culture wars by drawing on liberal values, such as individualism and neutrality, to allow individuals to emphasize more traditional or communitarian values, such as interdependence and attachment, if they so choose. This Article takes the argument a step further by recommending that communities of faith play an active, positive role in a marriage regime of expanded contract. Specifically, communities of faith should not only be allowed but should also be encouraged to define the types of commitments they wish to bless as marriage.
This Article first outlines some of the background for understanding changes in marriage and divorce in America, including changes in views on what marriage is and should be, as well as developments in society's conception of morality and law. After laying out the shifts that have taken place in the last half-century, the Article presents some of the major legal and nonlegal attempts that have been made to fix marriage. Then, the Article provides a brief overview of what others have written on how expanding the role of contract might be used to strengthen marriage. …