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Marriage, Religion, and the Law

by Wendy Kaminer

The following article is from Free Inquiry magazine, Volume 21, Number 4.

“Bible Belt Couples ‘Put Asunder?More,?the New York Times proclaimed on May 21 of this year: “The divorce rate in many parts of the Bible Belt is roughly 50% above the national average.?So much for the notion that secularism is to blame for the decline of traditional families, among other frequently lamented social ills. Apparently, in a least a few states, the divorce rate correlates to an excess of piety, not the absence of it.

What do we make of this amusing correlation? I doubt that religiosity directly causes divorce, but in some cases it may cause marriage, by condemning premarital sex and cohabitation as sinful; and marriage, of course, is the one indisputable cause of divorce. Marry in haste; divorce when you come to your senses. “I had this vision that this is just what people do; Get married, have kids and Christ comes back,?one Oklahoma divorcee told the New York Times.

She remarried, but a great many Oklahomans apparently prefer living in sin. (Religion may not cause marriage after all.) According to the Times, the number of unmarried cohabitating couples in Oklahoma increased 97 percent in the past ten years. It increased 125 percent in Arkansas and 123 percent in Tennessee. The average national increase in unmarried couples for the same period was 72 percent.

Statistics like these are deeply troubling to God-fearing social conservatives like Arkansas Governor Mike Huckabee, who declared a “marital emergency?in his state; and Oklahoma Governor Frank Keating, who has initiated a multimillion dollar campaign to strengthen marriage by sending publicly funded “marriage ambassadors? to talk shows and public schools and providing premarital education. Efforts like these reflect the growing right-wing pro-marriage movement: three states (Arkansas, Louisiana, and Arizona) have passed covenant marriage laws, which provide for marriage contracts that greatly restrict divorce. Several states are considering legislation requiring counseling before marriage or divorce. Meanwhile, conservatives at the Heritage Foundation have proposed that the Bush administration establish a federal office promoting marriage—traditional, heterosexual marriage, that is.

Despite the widely held belief that marriages bring people emotional stability, financial security, and even long life, opposition to gay marriage is a lot stronger than opposition to heterosexual divorce. Consider the strong bipartisan support for the federal Defense of Marriage Act (DOMA), which greatly restricts the legality of gay marriages permitted by any state. DOMA was passed by strong majorities in the House and Senate in 1996, with the support of liberals like Minnesota Senator Paul Wellstone and Maryland Senator Barbara Mikulski, as well as conservative, twice-divorced Georgia Congressman Bob Barr. Why is divorce among heterosexuals so much more acceptable than marriage among gay people? Divorce is generally regarded as a social ill, but homosexuality is still apt to be condemned as a sin. Indeed, opposition to gay rights helps unite religious conservatives.

Mainstream religious beliefs underlie many of our domestic relations laws, which means that laws regarding marriage and family life are liable to involve religious discrimination. Laws against adultery, which still exist in my home state, Massachusetts, reflect religious disapproval of extramarital sex. (If it is easy for people and prosecutors to ignore these laws, it is extremely hard for legislators to repeal them, partly because of the opposition from the Catholic Church.) Or consider prohibitions against polygamy, which some Mormons consider an expression of religious belief that ought to be constitutionally protected. They lost their constitutional argument over one hundred years ago, in Reynolds v. United States, when the Supreme Court held that Mormons could be prosecuted for entering into polygamous marriages. Thus, Judeo-Christian notions of marriage are incorporated into law while historic Mormon beliefs about marriage are criminalized.

As Utah polygamist Tom Green recently learned, laws against multiple spouses are still liable to be enforced. Green, who boasted five wives and an estimated twenty-five to thirty children, was convicted of four counts of bigamy (and one count of nonsupport). He was not a particularly sympathetic defendant: one of his wives was only fourteen when he married her, and he could not support all the children he promiscuously fathered. So, it’s probably not fair to say he was prosecuted because of his religious beliefs, but he was prosecuted in spite of them. He is not a particularly virtuous man, but he is, after all, a religious one.

Wendy Kaminer is an lawyer and social critic.  Her latest book is Sleeping with Extra-Terrestrials: The Rise of Irrationalism and the Perils of Piety.

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