292. "Marriage With No Easy Outs," New York Times, (August 13, 1997), p. A-29. Also published: St. Louis Post-Dispatch, Commentary page, (August 20, 1997). "Give Couples the Option to Work at Marriage," International Herald Tribune, (August 14, 1997).
Your local ice cream parlor, after selling only ice cream for years, suddenly starts offering frozen yogurt as well. Is this an imposition on customers, who are now "required" to make a choice? Are they being "coerced to think"?
This is the way some critics have characterized a new Louisiana law that, as of Friday, will allow couples to choose between standard "no fault" marriage and a "covenant" marriage.
Couples choosing a covenant marriage pledge to enter matrimony only after serious deliberations. They agree to try to resolve potential marital conflicts through counseling if either spouse requests it and to seek divorce only by a mutually agreed upon two-year separation or under a limited set of circumstances, like adultery, abuse, imprisonment for a felony and abandonment. The law also allows married couples to renew their vows and recast their commitment as a covenant marriage.
Basically, the new Louisiana law provides couples with a ready-made contract that, like all contracts, becomes enforceable by the state once it is entered into freely. In effect, Louisiana is providing a new form of prenuptial agreement, focused not on what happens to assets if the couple divorces, but on how to make divorce less likely.
The Louisiana Legislature, which is not widely known for social innovations, has come under criticism for this imaginative act. Some critics have said that the law imposes new constraints on marrying couples because they are forced to make a choice between the old no-fault and the new covenant marriage.
The feminist writer Katha Pollitt has characterized the law as "forcing" couples to make a choice. Margaret Carlson of Time magazine even suggested that the choice was "theoretical" because after Friday couples would no longer dare choose what she calls Marriage Lite over Marriage Plus. If only she would accept bets.
Most people would agree that allowing individuals to make choices is the exact opposite of coercion. Indeed, the Louisiana legislation provides a model of how a state can foster what it considers a virtue - in this case, stronger marriages - by giving people the opportunity to be virtuous, but not penalizing them if they choose not to.
If this approach were extended to other areas, more teachers would allow pupils to do extra schoolwork to improve a bad grade, rather than merely telling students they should do better next time. Anti-abortion forces might stop emphasizing a ban on abortion and instead offer even more pregnant women support services and help with adoption.
A state may favor some types of behavior over others, but it should promote these by giving people expanded options, rather than forcing them to behave in a preordained manner. And Louisiana couples who are in a rush to marry or for any other reason refuse to deliberate their joint future will not need to elope; they will still be able to marry the old-fashioned way, the no-fault way.
We are all better off if those who tie the knot are prepared for the commitment. Yes, divorce is sometimes called for. But most divorces are damaging, painful and costly for all involved. Moreover, studies show that above 20 percent of those who avail themselves of premarital counseling decide not to marry, this perhaps sparing themselves from a bad marriage and a messy divorce.
Some critics of the Louisiana law have argued that slowing down divorce is poor public policy because children are better off when feuding couples break up; they are no longer subject to incessant conflict or hostile silence.
Yet at issue here are not physically or psychologically abusive marriages, because these can be dissolved without undue difficulty under the new law. But for two people who have simply grown apart or are otherwise discontent, a divorce will be delayed for at least two years rather than the standard six months. This time could give the couple a chance to work things out.
The issue is not whether our divorce laws should be tailored for the small percentage of marriages that are seriously abusive, but whether the legal system now makes divorce too easy or too difficult. Are there millions of couples for whom a delayed divorce would cause serious and irreparable harm? Or are millions of couples calling it quits too easily?
To put it differently, should only "disposable" marriages be available to couples - or should there also be an option that encourages them to work harder at sustaining their marriages?
Far from joining with those who would abolish no-fault divorce and replace it with vows that severely restrict divorce, Louisiana has left the choice completely to the couples. Do they prefer to start with the promise of an easy exit, or are they willing to slow down before they quit?
The fact that some critics object to this modest, moderate step speaks to what is wrong with our divorce-prone culture.