Is Our Government Blackmailing People Into Marriage?

Anthony is my boss at The LaMantia Law Firm here in Charleston, South Carolina — so, be nice.  When I first met Tony prior to moving to South Carolina, he was already beginning to get politically involved, launching an unsuccessful bid for State House of Representatives in early 2010.  It is my hope that he’ll do some writing here, even if that writing comes from the convergence of political theory and Family Law issues, like you see here.  Whatever his commitment may be at AR, I’m glad to have him around.  Enjoy.  — Jeff

It is well established that, in South Carolina, public policy favors the institution of marriage, as affirmed recently by our Supreme Court in the case of Theisen v. Theisen. It is also well established that the Family Court disfavors romantically involved adults who live in the same home without the benefit of being married when one or the other’s minor children reside in the same household. Numerous parents have even lost custody of their children because they are “living in sin” with their romantic companion.

Our state legislature has even gone so far as to make this a crime — see SC Code 16-15-60. This bar against romantically involved adults living with one another without the benefit of marriage and with their children applies equally to homosexual relationships and heterosexual relationships, leaving one to ponder – Are we blackmailing people into marriage?

Within the last month, I have married two couples and married another this week, solely to help a parent either gain or retain custody of their children and attempting to avoid the Family Court’s determination that the parent engaged in the romantic relationship is living in an immoral home environment and thus exposing the children to their parent’s legislatively determined “immorality.”

While it may be a funny thing for a divorce lawyer to say, I am a big proponent of marriage and have been married for over fourteen years. I believe that marriage can be a wonderful thing for adults and children alike. But what are we try to accomplish by forcing people to marry in order to maintain custody or overnight visitation with their children? Does a license really set the standard for an individual’s morality, and conversely, their ability to parent their children?

In general, we as a society want people to marry because they are ready to make a deep and longstanding legal and social commitment to one another and we ask Americans enjoy the freedom to choose our spouse. On the other hand, it is commonly claimed that over fifty percent of marriages end in divorce. It would be interesting to know what the divorce rate is of people who married one another because they wished to remain living with their significant other while not losing custody or overnight visitation with their children. I suspect that the divorce rate of these marriages will be higher simply because the parties have been forced into marriage. By forcing people to marry, are we not also increasing the divorce rate and the resulting societal dysfunction which we were trying to avoid to begin with by encouraging the marriage? Ultimately, what can be the success rate of people forced to marry for the wrong reasons?

If our societal goal is to perpetuate the institution of marriage, our mission has been accomplished. If our societal goal is to support long lasting marriages and a healthy society, how can we do this if people are blackmailed to the altar or the justice of the peace? In other words, if our society compels people to marry for the wrong reasons, aren’t we doing society and our children a disservice by imposing a life plan on them that may not be what is in their best interests? Should morality be legislated by our government?

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Comments

  1. Bob Upton says:

    Welcome to AR Anthony!

    You have posed many good questions so I will keep my responses brief.

    >”Should morality be legislated by our government?” Government may try, but it cannot legislate morality in a people who are not self-regulated by morality.

    >”Does a license really set the standard for an individual’s morality, and conversely, their ability to parent their children?”
    I believe the standard is not at all about the parent’s ability, or morality, but rather encouraging the familial unit which is historically shown to be best for the child.

    >”Ultimately, what can be the success rate of people forced to marry for the wrong reasons?” I question whether those that are free to marry now are marrying for the right reasons. If people married for the right reasons we would not have the divorce rate we see now. We say we marry “for love” but we mostly marry for “like”. When we don’t “like” it anymore we bail. Anyone can “fall in love”. We need to learn how to love beyond the “like” and stop acting like high school couples that break up when we become unhappy.

    Since government licenses us to drive, to hunt, to build, to practice law, etc., and holds us accountable to certain standards, should it not license us to enter into the biggest contract of our lives? Since government holds us legally accountable for our obligations to our children should it not set the standards for their well being? If we want a government big enough to do all of this and more should we not expect that government to take care
    of everything for us?

    We could , of course, get government out of all those areas if we just had the will to do so as a people. I wonder what it was like to be free?

    “The foundation of national morality must be laid in private families…. How is it possible that Children can have any just Sense of the sacred Obligations of Morality or Religion if, from their earliest Infancy, they learn their Mothers live in habitual Infidelity to their fathers, and their fathers in as constant Infidelity to their Mothers?”
    John Adams, Diary, June 2, 1778

  2. Randy Wills says:

    Greetings, Anthony. A very provocative article, indeed.

    In answer to your closing question, “Should morality be legislated by our government?”, I would say “Yes, I think that it’s entirely reasonable and Constitutionally-consistant for the government to make a good-faith effort to reinforce the reality expressed by President John Adams when he said “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” Therefore, I would ask, “Is it not proper for our government to play an active role in preserving, or at least making visible, those conditions which are, in the wisdom of our Founders, bedrock requirements for the sustanance of an orderly and productive society?”.

    Further, I would assert that biological parents, by their example of, as you say, “living in sin”, predispose their child(ren) to follow this pattern of disrespect for personal responsibility in their adult lives. When one considers the logical societal outcome of this mentality, does it not represent a real threat to the sustainability of our society? I believe that the evidence all around us is clear; it does.

    So yes, such a requirement in law may not prevent future divorces, but it does give weight to the notion that there are moral laws upon which a sustainable and productive society depends. And this is what government does; it makes laws that attempt to simulate the lost sense of personal morality that the Founders based their hopes on.

    Respectfully, Randy

  3. whats_up says:

    @Randy,

    Dont you think in their infinite wisdom that had the Founders wanted to “legislate morality” then they would have done exactly that. It is telling that they choose not to. They understood that they wanted less government in their lives. Also who’s morality do you legislate. Baptists? Catholics? Mormons? Atheists? Yours? Mine? I would prefer mine.

  4. Randy Wills says:

    Well, c’mon, whats_up. Morality and religion, in terms of the way you pose the question, are two different things. Rather than refer to “your” morality or “mine”, lets agree on the Webster Dictionary definition: “Morality: 3. conformity to ideals of right human conduct.”

    Although we typically associate “morality”, as we understand it, primariliy with religious doctrine regarding sexual practice, I would argue with equal vigor for the value of “morality”, as Webster defines it, on the demonstrable basis of societal benefit, i.e. preservation of the family structure. I thought that I made that clear. No proselytizing here (although I make no apology for my personal commitment to the Gospel of Jesus Christ, with no denominational prefix).

    And although the Founders wisely did not attempt to embed a moral code of conduct in the Constitution because that was already, and rightfully so, the purvue of the church, John Adams made clear in the statement that I quoted that they understood that the perpetuation of a civil and orderly society assumed that people understood what “moral” meant and where the concept of “morality” came from.

    It’s late and my rebutal is kind of scrambled, but I hope that it helps you to not be offended at my claims regarding the government’s roll in perserving our cultural foundations.

    Randy

  5. Randy Wills says:

    Oops. That should have been “purview”, I believe.

    Randy

  6. Gail B. says:

    Anthony, I just want to welcome you to AR and will add that you are, indeed, fortunate to have Jeff Schreiber in your employ. He has led us through some tough times, and Obama is not out of office yet!

  7. Matt says:

    The government does this all the time. Consider taxes on tobacco and its effect on the number of smokers. It is an attempt to direct people away from smoking as much as it is to cover the additional health costs related to smoking. Smoking is made illegal in public buildings in many states. All an attempt to disincentive smoking (also protecting others from second-hand smoke).

    My question is why isn’t the state seeking simultaneously to disincentive divorce. That is just as easy to do by making it harder to accomplish, financially and legally, and increasingly make divorce financially undesirable as opposed to working out issues and strengthening the marriage. In the end, this would reduce government cost because there would be less people requiring public assistance and weighing down a host of other entitlement programs.

    I would say your state has something left over that hasn’t been eliminated yet. At the same time, it should not be eliminated, but reinforced in a way that it used to be so it doesn’t stand out as such an odd duck and easy target.

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