The Covenant Marriage

by Chris Caldwell
Thursday, April 30, 1998

Supporters of Louisiana's new covenant marriage law compare it to Ulysses' command that he be lashed to the mast of his ship to avoid being lured into the shoals by the singing of sirens. Think of Ulysses as a husband or wife and divorce as the shoals. Acting on the belief that America's rate of marital shipwreck is causing special damage to children and laying at least part of the blame on the ease with which a divorce can be obtained, Louisiana has just become the first state in the nation to offer newlyweds the option of strapping themselves to the conjugal mast.

The state's covenant marriage act, which went into effect in late summer 1997, allows couples to choose a "high-test" version of marriage. Couples who want a covenant marriage must receive counseling before marriage and--knock wood--before seeking divorce. No-fault divorce is available only after a two-year separation, as against six months under existing state law. Divorce can be granted sooner for the traditional "fault" grounds, which the new law revives--adultery, abandonment, physical or sexual abuse, or conviction of a capital crime.

So Louisiana's covenant marriage does not, as some of its detractors have claimed, put an end to no-fault divorce. If you want to get married in Louisiana the same way you could six months ago, no problem. But the new law does send an unmistakable message that one state at least has an interest in intervening to shore up what it sees as an embattled institution.

Although few couples have yet said "I do" under the new dispensation, friends and foes of Louisiana's innovation believe it is portentous. Indeed, similar legislation is pending in Indiana and California, not to mention bills in half a dozen other states to either restrict no fault or add counseling requirements before marriage or divorce. And extravagant claims abound on both sides, with critics charging that covenant marriage represents a secret offensive by the religious right, and some optimists predicting that the rollback of America's divorce culture is under way.

The intellectual roots of covenant marriage are prosaic by comparison. The concept has been elaborated in the academic work of certain law professors--most notably Elizabeth Scott of the University of Virginia and Margaret Brinig of George Mason University--who have cast about for a legal framework to strengthen marriage. Both focus more on reinforcing the solemnity of marital vows than on eliminating no-fault divorce. Says Scott, "What I like about the Louisiana law is its required two-year separation, which is beneficial to a divorcing couple's ability to make a thoughtful decision. What I don't like about it is the inclusion of fault grounds." Brinig has similar worries. "I'd be concerned that young people, teenagers, might fall in love, get into a covenant situation, and not be able to get out of it," she says.

If its intellectual originators are modest in their conception of what covenant marriage can accomplish, its political sponsors use similarly understated rhetoric. "This is not about eliminating divorce," says Tony Perkins, the thirty-four-year-old Republican state legislator who sponsored Louisiana's new law. "The goal is to strengthen marriage." Perkins, who ran the 1996 Senate campaign of Republican Woody Jenkins, says he would prefer an end to no-fault divorce "in an ideal world" and hopes that social pressures will eventually result in 50 to 60 percent of marriages being of the covenant type.

Feminists and civil libertarians worry aloud that any stiffening of divorce requirements will keep women in abusive relationships, particularly those involving mental abuse, which is not among the recognized grounds for "fault" divorce. But their underlying gripe is that the covenant marriage movement strengthens the hand of antifeminist elements in the religious right. "Just look on the Internet," says Louisiana National Organization of Women (NOW) president Terry O'Neill. "'Covenant' and 'covenant marriage' are terms with a very specific meaning in the Christian community."

There is indeed huge sympathy for the measure among the religious. Several Episcopal and Baptist ministers have said they will grant church marriages only to those who are serious enough to undertake a covenant marriage commitment. Tom Finney, spokesman for the Catholic diocese of New Orleans, says, "The covenant marriage idea is certainly closer to the Catholic idea of marriage."

Against the complaints of NOW that a lengthened waiting period for divorce will keep women in abusive relationships, covenant marriage partisans cite a study showing that current husbands and fathers account for just 9 percent of abuse cases—the rest of the perpetrators being former husbands, boyfriends, and other nomadic partners of the divorce culture.

Perkins, a father of two girls who is active in the Promise Keepers movement, makes no bones about his own Christianity. Yet he and the Louisiana lawmakers who voted with him cannot be dismissed as Bible-thumpers. There is a distinctly nonsectarian side to the covenant marriage movement, one best expressed by strong supporter Amitai Etzioni, founder and director of the Washington-based Communitarian Network, who says, "One can be deeply concerned with strengthening the commitment of marriage without favoring traditional or hierarchical forms of marriages or denying women full equal standing."

Perkins, in fact, far from seeing his legislation as an attempt to undo the legacy of feminism, notes that it actually expands the grounds for fault-based divorce, making Louisiana the only state outside West Virginia that admits child abuse as a rationale. And against the complaints of NOW that a lengthened waiting period will keep women in abusive relationships, covenant marriage partisans cite a 1991 Justice Department study showing that current husbands/fathers account for only 9 percent of abuse cases--the rest of the perpetrators being former husbands, boyfriends, and other nomadic partners of the divorce culture. Just as it amazed onlookers to see the ease with which a masterful pol like Bill Clinton could turn traditionally "liberal" issues like gun control into "family values" issues, Perkins has stunned Louisiana's political establishment by courting feminists with hard evidence that traditional marriage favors even untraditional women.

That leaves detractors like O'Neill of Louisiana NOW hard-pressed to specify just what it is that so irks them. "I'm on the same page with Perkins on some issues," she says. "He says no-fault divorce has harmed women and created a trophy-wife problem. He's absolutely right; I absolutely agree. And you stand on the sidelines and see the havoc divorce wreaks on kids, and you want to wring these people's scrawny necks. But the couples know that, and it tears them apart. I have never seen a man or a woman who wasn't totally traumatized by divorce. This law is just a way of punishing them. Let's try something other than hellfire and brimstone."

For all its conservative associations, it's not certain that the Louisiana statute serves an idea of marriage that conservatives will want to claim as their own. Even the most ardent family value advocates have seldom cited insufficient state policing as the primary cause of the current rotten record of marital permanence. Back when marriage was well policed, it was policed--and not always prettily--by gossips and priests and violent older brothers. Today, that kind of minding of other people's business has not only been discredited but even been made illegal.

The first employer who decides he wants only covenant marrieds working in his plant will wind up on the losing end of a Supreme Court decision. Whether the work of constructive bullying, or tough love, can be done by a bunch of counselors and bureaucrats in some Department of Happy Marriages in the state capital 180 miles away is open to question.

In the meantime, what Perkins and his allies have served up is a heady Clintonite cocktail, composed in equal parts of minor legislation, the rhetoric of choice, education (or counseling) as a pain-free means to social improvement, the protection of children as a first imperative, and all of it based on a proposition--that marriage is an institution that's worth defending--with which no one could possibly disagree.

The result is a reversal of roles that ought to be heartening to the GOP. For once, it's Republicans who are arguing on behalf of "commonsense" solutions for those who work hard and play by the rules. Democrats, meanwhile, resort to abstract, destroy-the-Department-of-Education-style libertarianism of the sort that has proved a consistent loser in the politics of the last three years. No matter what the outcome, something very significant has happened in Louisiana: the first Republican defeat of Clintonism on Clintonite turf.