This past week I had the privilege of sitting in for Kerby Anderson on Point of View, the nationally syndicated radio program founded by the late Marlin Maddoux.
To be honest, "sitting in" may be an overstatement as I fall far short of Kerby's ability and intellect when it comes to addressing today's most pressing issues, especially in the context of a live radio broadcast. Kerby along with co-host Carmen Pate do an exceptional job of raising the level of discourse on the major topics of our day. I strongly recommend this program to anyone who wants to understand relevant cultural and political issues from a learned biblical life and worldview.
While I always enjoy being on Point of View the subject of this program was of particular interest to me and I learned some things that I really did not realize about No-fault divorce.
I along with many others have long argued that the adoption of No-fault divorce, beginning in 1969, has served to increase family dissolution rates and undermine the institution of marriage itself, perhaps more so than any other single factor in history.
Constitutional and family law attorney, J. Shelby Sharpe who was a guest on last week's program said, "No-fault is national catastrophe. Anything which overturns the order or systems of things whereby families are destroyed and the whole of society adversely affected is by definition a catastrophe."
It may surprise you to learn that the efforts to advance No-fault divorce legislation were underwritten, in large part, by Hugh Hefner through the Playboy Foundation, which financed an "army of young lawyers" working to eliminate the legal protections previously afforded women and children. Alfred Kinsey also played an instrumental role in reducing these legal protections by falsely reporting that adultery was commonplace in most marriages. This reduced the stigma associated with adultery and ultimately served as the basis for eliminating all laws against adultery. Hefner and Kinsey both saw marriage as the final barrier to sexual freedom and thus determined to remove its inhibiting influence upon unrestrained sexual liberty.
Prior to No-fault divorce, the party seeking divorce was required by law to demonstrate guilt or cause on the part of the other party prior to dissolving the marriage, dividing the family's assets and destroying the two-parent structure essential for children. These measures provided strong legal protections primarily to women and children who might otherwise find themselves abandoned by husbands and fathers who simply no longer wanted to satisfy their familial responsibilities. (You might think me overly hard on men and unfairly sympathetic to women. Granted both men and women can be guilty of abandoning marriages, however, statistically speaking women and children are most often the victims.) In the cases of adultery the offending spouse risked losing everything. Today under No-fault divorce law adultery is not even considered relevant and therefore bears no relationship in the Court's decision.
Additionally, under the previous Fault system the state was limited in its actions and intrusion into the private affairs of family except in those cases where one of the parties committed a legally recognized offense against the other. In the wake of No-fault divorce the state has been given unprecedented access into and unconstitutional authority over what was previously sacrosanct: the family. Common law tradition in this country has historically treated the family as a preserve of privacy that was largely off-limits to the government. It was as Supreme Court Justice Byron White (1962-1993) called the "realm of family life which the state cannot enter."
This is what was most surprising to me; the constitutionality or lack thereof related to No-fault divorce. A retired Circuit Court judge writes, "To the characterization of No-fault divorce laws as both ungodly and inhumane I would add unconstitutional as well." Attorney Sharpe was confident that if a case involving No-fault divorce was ever brought before the U.S. Supreme Court it would no doubt be ruled unconstitutional and No-fault divorce abolished.