Scott Keyes writes for ThinkProgress at the Center for American Progress Action Fund.
For years, social conservatives have been fighting to prevent certain people from getting married. But they’re waging a parallel battle, too: Trying to keep married couples together.
In cooperation with the Family Research Council and the National Organization for Marriage, socially conservative politicians have been quietly trying to make it harder for couples to get divorced. In recent years, lawmakers in more than a dozen states have introduced bills imposing longer waiting periods before a divorce is granted, mandating counseling courses or limiting the reasons a couple can formally split. States such as Arizona, Louisiana and Utah have already passed such laws, while others such as Oklahoma and Alabama are moving to do so.
If divorces are tougher to obtain, social conservatives argue, fewer marriages will end. And having more married couples is not just desirable in its own right but is a social good, they say. During his presidential campaign, former senator Rick Santorum (R-Pa.) emphasized finishing high school and getting married as cures for poverty. “If you do those two things, you will be successful economically,” he declared at a 2011 event in Iowa.
A legislative movement against divorce may seem like a non-starter in a country where half of married couples avail themselves of this right, but as with legal challenges to Obamacare and the rise of the tea party movement, today’s fringe idea can quickly become tomorrow’s mainstream conservatism.
Divorce has long been a cultural touchstone in America. Social conservatives regularly advocate a return to a more traditional system of divorce — namely that it be extraordinarily difficult to get. For example, the only way an Alabamian could get a divorce under the state’s original 1819 constitution: “No decree for such divorce shall have effect until the same shall be sanctioned by two thirds of both Houses of the General Assembly.” Even a battered wife — who, of course, couldn’t vote — would have to petition her all-male state legislature and get supermajority approval before being freed from matrimony.
For most of American history, to obtain a divorce, one party had to prove to a judge that the other party was at fault, meaning he or she had committed certain grievous acts that irreparably harmed the marriage, such as adultery or being convicted of a felony. Emotional or physical abuse wasn’t always enough; even adultery or abandonment could be insufficient if a spouse reluctant to get divorced convinced a judge that his or her partner was similarly culpable. And as historian Glenda Riley showed in her 1991 book “Divorce: An American Tradition,” loveless couples often found creative ways to persuade judges to end their marriages: As recently as the 1950s, some couples would stage a bust, complete with hotel room, “mistress,” photographer and private detective who would testify in court about the husband’s (or wife’s) supposed illicit deeds.
This system began to crumble during the 1960s. In 1969, California became the first state to legalize no-fault divorces — permitting divorce without requiring proof of wrongdoing such as adultery — in the Family Law Act, signed by Gov. Ronald Reagan. Within a decade, 45 other states had joined California. By 1985, 49 states had legalized no-fault divorce; New York did just four years ago .
No-fault divorce has been a success. A 2003 Stanford University study detailed the benefits in states that had legalized such divorces: Domestic violence dropped by a third in just 10 years, the number of husbands convicted of murdering their wives fell by 10 percent, and the number of women committing suicide declined between 11 and 19 percent. A recent report from Maria Shriver and the Center for American Progress found that only 28 percent of divorced women said they wished they’d stayed married.
Yet the conservative push for “divorce reform” is finding sympathetic ears in statehouses, where Republican lawmakers have regularly introduced bills to restrict the practice. Their rationales range from the biblical (God bemoans divorce in Malachi 2:14-16) to the social (divorce reduces worker productivity) to the financial (two households are more expensive to maintain than one). Leading conservatives such as Sen. Marco Rubio (R-Fla.) and Rep. Paul Ryan (R-Wis.) have also argued that marriage is a solution to poverty.
The cause earned national support in 2011 when three Republican presidential candidates — Texas Gov. Rick Perry, Rep. Michele Bachmann (Minn.) and Santorum — signed a pledge from the Family Leader, a conservative organization in Iowa, that urged “ ‘cooling-off’ periods” for people seeking what it called a “quickie divorce.” Last year, seven GOP lawmakers in Iowa introduced HF 338, which would have prohibited no-fault divorces for couples who have children under 18. Under the bill, parents could divorce only in cases of adultery, imprisonment due to a felony, abuse, abandonment or if the couple has been separated at least two years. The lead sponsor, Rep. Tedd Gassman, argued that this bill would “ensure that divorce is not the first option for married couples with children.”
While some studies show that children of divorced parents do experience worse life outcomes — including diminished math and social skills, a higher chance of dropping out of school, poorer health, and a greater likelihood of divorce themselves — Stanford sociologist Michael Rosenfeld points out that there is no way to test definitively whether children of divorced parents were already more likely to experience such outcomes. And as Stephanie Coontz, a historian and the author of “Marriage, a History,” explains, what’s most critical is the high-conflict environment that kids grew up in before their parents separated.
Ultimately, HF 338 failed last year not because of its content but because of bizarre public comments Gassman made. The lawmaker argued that with divorced parents, teenage girls would be “more promiscuous.” He also linked divorce and the shootings in Newtown, Conn., blaming the shooter’s mind-set on “family problems.” Wary of controversy, GOP leaders dropped the bill.
At least a dozen other states since 2011 have tried to make divorce more difficult. Along with Iowa, New Hampshire and Oklahoma have tried to eliminate no-fault divorce for parents. In Oklahoma, lawmakers are also considering a bill that would virtually prohibit no-fault divorce but preserve divorce as an option in cases of “impotency.” Other states are pushing legislation to lengthen the waiting period before a judge can grant a divorce, including up to two years in North Carolina. Currently, most states have a two- or three-month waiting period before a divorce is finalized, though it is longer in a handful of mostly Southern states, including Louisiana, North Carolina, South Carolina and Virginia.
Such waiting periods are “fairer to the spouse who is being left,” the Family Research Council contends in a brochure titled “Deterring Divorce.” But inherent in that argument is an unfortunate and unavoidable reality: Making divorce less accessible harms women most. The right to divorce was a victory women fought for in the culture wars of the 1970s, and women today are twice as likely as men to ask for a divorce, according to Rosenfeld.
For more than a decade, three states have tested the appeal of more-restrictive divorces. Louisiana was the first, in 1997, to pass a “covenant marriage” law, which allows marrying couples to choose between a standard license (allowing no-fault divorce) and a covenant license (heavily restricting the reasons a couple may divorce). Arizona and Arkansas soon followed. If social conservatives were looking to show that no-fault divorce was unpopular, they could not have picked better testing grounds than these three deep-red states.
But the experiment has proved disastrous for their cause. Between 2000 and 2010, there were 3,964 covenant marriages in Louisiana — roughly 1 percent of the 373,068 marriages performed in the state. The rates were even lower in Arizona and Arkansas. Nevertheless, state legislators are undeterred: Since 2011, lawmakers in Alabama, Mississippi, Oklahoma, Texas and Kansas have tried to enact covenant marriage.
Would making divorce less accessible encourage partners to stay together, as conservatives hope? Probably not. Waiting periods and mandatory classes “add a new frustration to already frustrated lives,” Rosenfeld notes. In other words, a cooling-off period isn’t cooling anybody off.
More problematic, these roadblocks “could easily exacerbate the situation and harm kids,” Coontz says, noting that divorcees are “more likely to parent amicably if they haven’t been locked into a long separation process.”
The push to restrict divorce is a form of paternalism — expanding government in pursuit of socially conservative ends. Marriage is a conservative institution, the thinking goes, and married straight couples provide a backstop against the creep of government. Any public policy that encourages the creation and persistence of married straight couples therefore merits support; any policy that deviates, including same-sex marriage or no-fault divorce, is hostile to the institution.
The Family Research Council sees no contradiction in the state playing an active role in such private decisions. “As the grantor of both marriage licenses and divorce decrees, the state has already established the right to regulate the disbursement of each,” argues Peter Sprigg, senior fellow for policy studies at the council.
But if new divorce restrictions fail to pass, it may be for a self-interested reason: Republicans get divorces, too. Two of the five states with the highest percentages of divorced residents are red states. In Oklahoma, the state with the largest share of women who have been married three or more times, Republican lawmakers killed a 2010 bill making divorce more difficult to obtain. “How far do I want government to come into my home and your home about private personal matters?” asked GOP Rep. Leslie Osborn.
And if conservatives actually believe that divorcing couples might have a change of heart, there’s another solution besides longer waiting periods: remarriage. However, only about 6 percent of divorcees ultimately remarry each other. Reconciliation certainly happens; divorce doesn’t have to be forever. But it’s impossible to pass legislation that stops spouses from lying or cheating.
Alabama: A bill under consideration would mandate a four-hour class for divorcing parents with children younger than 16.
Arizona: A law passed in 2011 enables one party in a divorce to extend the process by up to four months.
Georgia: A bill under consideration would mandate classes for parents seeking to divorce.
Iowa: A bill that failed last year would have prohibited no-fault divorces in most cases for couples with children under 18.
Kansas: A bill under consideration would effectively eliminate no-fault divorce.
Louisiana: A law that went into effect in 2007 extended the waiting period for parents from six months to one year.
New Hampshire: A bill voted down in February would have gotten rid of no-fault divorce for parents of minor children.
North Carolina: A bill under consideration would double the waiting period to two years and require couples to receive conflict-resolution counseling, as well as additional counseling if they have children.
Oklahoma: Bills under consideration would eliminate no-fault divorce ; get rid of no-fault divorce for parents of minor children, for couples married more than 10 years and in contested divorces; and double the waiting period from three to six months.
Washington: A bill under consideration would quadruple the waiting period from 90 days to one year.