Space limitations prevent me from going through your reply to point out every place in which you caricature–or invent–my arguments. I never argued, for example, that law has no effect on human behavior: Who could believe such a stupid thing? The law has everything to do with who can and can’t get divorced: If divorce is illegal, as it was until just now in Ireland, no one can get one. It may well be that forcing people to jump through costly, humiliating, and laborious hoops–adversarial trials in which fault must be proved, court-mandated counseling–will dissuade some couples from formally dissolving their union. But will putting up legal barriers to divorce mean that those couples continue to live together? Let alone provide a peaceful home for children? No. They will split up informally, as they do now in countries where divorce is hard to get. Even in this country, lots of people simply live apart, with no decree, until one or the other wishes to remarry.
What I don’t like about fault divorce is partly that it gives the wrong picture: that the breakdown of marriage is the fault of one partner, who did a bad deed. Maybe that’s true now and then, but mostly marriages fall apart because of both partners. Most couples recognize this, and make a mutual decision to part. Who in their right mind, after all, would want the state to compel their spouse to remain in the marriage when that spouse has rejected them so firmly by suing for divorce? Religious fanatics, abusers, controllers, revenge-seekers, and people out of touch with reality. Even Barbara Dafoe Whitehead, a member of your institute and a formidable foe of divorce, opposes your campaign to bring back fault divorce: It places enormous obstacles in the path of abused women, and increases their vulnerability to violence. Do you really want to give judges the power to say a marriage is “good enough” and the partners should make the best of it? As for your other ideas, waiting periods of more than a year or so are simply punitive, intended to prevent the legalization of new relationships: Judith Wallerstein, also a colleague of yours, told me waiting periods “never” bring couples back together. As for mandatory counseling, I place less faith in marital therapy than you do (having experienced it!), but surely the right time for it is when one spouse first proposes it, not when he or she has already emotionally exited the relationship. The light bulb has to want to change.
Behind all these ideas is the notion that people divorce whimsically, frivolously–“for no reason,” as one pro-fault campaigner put it. I think that’s pretty rare. Most people–especially parents–try hard to suppress their unhappiness and put up with all sorts of awful things, precisely because divorce is such a big step with such big, often unfortunate, consequences. It may look sudden to an outsider–or to a spouse who’s been tuned out for the last decade. But it’s usually the last step in a long, dreary journey.
Well, I could go on and on, but Mike [Kinsley] won’t let me. One final point: The only reason you give for wishing to prevent divorce is that divorce is always bad for children. I dispute this. Of course it is better for children to grow up in a happy, solvent, two-parent home, gay or straight, than to grow up with a poor, struggling, single mother and to be, essentially, abandoned by their father. But that is not a choice many people get to make. The only fair comparison is between children whose parents divorce and those whose parents persist in miserable, conflict-ridden marriages. (A number of studies show that such unions do not benefit children.)
You argue that even if I and “my friends” were in charge of family law and policy, single mothers and their children would still be economically vulnerable and deprived. Why do you think that? Is it inevitable that women get paid less than men, are steered from birth into low-wage employment, are permanently economically disadvantaged for taking time out to bear and care for small children? Single mothers are not poor and overwhelmed in Scandinavia. In many European countries and in Canada, they and their children do better than in the United States, because those societies have decided to provide for children and families through a general social-welfare system, and we have left them to rely on a male income. That many fathers abandon children after divorce is quite an indictment of the values of American men, but it is not an argument for forcing women to stay married to them.
Indeed, it says something about the gendered misery of many marriages that even given the difficulties that await them, women file for divorce in greater proportions than men. If the lot of divorced women is as terrible as you portray, the marriages they are leaving must really be hell on earth.