Much has been written, recently, about bans on same-sex marriage being found (at last!) to violate the Constitution, just as in a past generation other laws banning marriages between people of different racial identification groups were also incompatible with the idea of a free people living under the rule of Constitutional law. So I need not belabor the point that when lawmakers try to tell people who they should or should not love, the laws they create almost always fail.
But this is only one example of my thesis: the law is only minimally compatible with humans who experience love; the two are so different from each other that they cannot but help get in each others’ way from time to time. Fundamentally, the law is about regulating behaviors — incentivizing best behavior, punishing unacceptably bad behavior. Love is about an exchange of a particular emotion between two individual people. When one interferes with the other, very strange things happen. Rarely are they good.
1. “By The Power Vested In Me By The State…”
A couple years ago, I registered with Los Angeles County as a minister to perform a marriage ceremony for two close friends, and I thought that was one of the biggest thrills I’ve had since I got married myself.
The only legal requirements were that I call myself a minister, that the couple have completed and paid the fee for the application for the marriage license, and that there be a “solemnization ceremony” of some sort. I had to sign off on the license after the ceremony indicating that I had performed it. A few weeks later, I got a call from the county clerk, asking what kind of a minister I was. Following the advice of a friend who also presided over secular weddings and warned that such a call might come, I answered “Unitarian,” which isn’t strictly true, but it all worked out just fine.
Point is, all this business about what’s in the ceremony can be whatever the spouses want. Or, in the case of my own wedding, what our families wanted, because as far as I was concerned, the legality was sufficient and the rest was done to please our families. So we got a religious invocation because that pleased my grandmother, a bit of subterfuge that I’m sure my best man wisely arranged behind my back.
If it were otherwise — if only a formally ordained minister were the “minister” able to officiate — if there were certain words that had to be said in the ceremony — if was some sort of substantive content requirement that the solemnization ceremony had to satisfy — if the rules about is or isn’t a “real” wedding get into those kinds of questions, then we’re looking at a potential for a Free Exercise Clause violation, aren’t we?
At least here, the law gets it right. Some involvement by the state is inevitable, but the content of how a marriage is created is something that people should be let to themselves to decide, absent a damn good reason why they shouldn’t. I realize that this general principle leads to questions of consanguineous marriage or polyamory, and I think that however much most of us would find these issues distasteful to contemplate, we need to be deferential to how truly consenting adults choose to live their lives.
2. Love Overrides Litigation Strategy
The best story I ever heard about love and the law came from my ethics instructor in law school. He represented a plaintiff in a personal injury suit. This story helped me get through a rather long, second-and-later-dateless stretch of time in my social life that occurred early in my legal career. Goes something like this.
The plaintiff worked in a shop in a strip mall. The space next door was under renovation.
So, she’s hanging a picture on the wall, and for a moment kind of loses her balance while standing on a stepladder. There was a moment she sort of lost her balance, so she placed the palm of one of her hands flat on the drywall and steadied herself.
That’s right when the guy working on the wall on the other side punched through the drywall with his drill. He’d been expecting to find a stud or a beam, so he’d put some strength into it. Only there wasn’t a beam, just a sheet of drywall.
You can guess what was on the other side of that drywall. In a fraction of a second, he’d drilled straight through the plaster and the tip of the bit came out of the back side of my client’s hand.
So that’s a pretty good negligence case there, right? Only one problem. The plaintiff instructed me that she did not want to sue the guy. Why? Why, you ask? Because after this, they had started dating!
That dude must have been really charming.
And it was something of an inspiration for me, during a dry patch in my dating history — if one person in the first place forgive another person for literally driving a drill through her hand, but then go on to fall in love with him afterwards, then there must be hope for everyone to find a suitable mate. I caution those who are out there looking to get in to a long-term relationship, try to avoid “causing your potential mate potentially lifelong personal injuries” as the strategy of choice for making that initial connection, despite the fact that it could make for the most colorful “So, how did you two meet?” story ever.
The point of the story, of course, is that the lawyer had to follow his client’s instructions. He had to figure out some other way to not name the boyfriend as a defendant, even though the requirements of pleading under California law would seem to require it.
In this story, love triumphed over law. But you can see how they would clash here.
3. Failed Nomenclature
Among the relics of common law that I find least compatible with modern notions of ordinary life is the way that common law labels marriage as a “contract.” Legally speaking, a contract is a special form of transaction, in which both parties agree to exchange something of value, and whose object is not contrary to law. Such a transaction is given the powerful benefit of judicial enforcement: people can be made to stick to their deals and give the other party the benefit of her bargain. This, for the most part, is a powerful tool for enabling and promoting commerce and economic activity.
So is that what marriage is all about? Maybe if we consider marriage as a transaction for chattel, a formalization of a business or political relationship, or a means by which an individual’s social standing and reputation were enhanced, it becomes a relatively easy thing to monetize the value of a marriage. Maybe it’s even possible to put a price tag on socially legitimized sexual relations.
But in our modern world, most of us typically adhere to a notion of adults self-selecting one another for marriage, for marriage to be sought by individuals principally for things like love, sex, formation of a common household, and childrearing. Certainly we all realize that marriage may exist for any of a number of reasons, and most people would tend to agree that why people choose to marry is really no one else’s business. And particularly not the business of the government or the public at large.
Now, if we call this relationship a contract, then we are indicating that it is an important enough exchange of promises that the government will enforce the benefit of the bargain. But to do so requires an analysis of the terms of the bargain. Not all marriages are alike. Many, but not all, marriages include promises of sexual fidelity. Yet there are open marriages. And of sexual activity between the marital partners! Yet there are sexless marriages. Or the mutual expectation of procreation and childrearing. Yet there are childless marriages. Or the formation and maintenance of a common household. Yet there are spouses who live their lives apart from one another, maintaining separate homes, separate bank accounts, and so on. There is no typical set of promises exchanged in modern marriages, because modern marriage is what the spouses make of it. The government oversteps its bounds, in a way that even the most interventionist of observers is likely to agree with, when it attempts to tell spouses what their marriage should be like.
And then there’s the question of breaching the contract, and how to remedy such a breach. Since this sort of traditional, Western, Christian-lensed vision of marriage is inherently an exchange of promises, the promise to marry is, itself, the consideration to the contract. Which means that breaking an engagement is breaking the contract. Which means the other party can bring a lawsuit for breach of contract to get the benefit of the bargain, raising the vexatious question of the form of the remedy.
How is the court going to deliver the benefit of the promise of sexual fidelity to the plaintiff — with an injunction, perhaps? Or the expected contribution to the plaintiff’s household — isn’t that involuntary servitude, forbidden by the Thirteenth Amendment? So the remedy becomes money, and now we’re talking about the money for the loss of consortium, which is a tort remedy and not a contract remedy. Even so, if the defendant had gone through with the marriage and then immediately filed for divorce (see below), there would be no cause of action at all, so the whole exercise is just plain silly.
Now, if you want to say the phrase “contract of marriage” is a figure of speech, not a literal contract, knock yourself out. Please be conscious, though, that we aren’t talking about a legal contract. Nevertheless, the intellectual shorthand of the phrase “contract of marriage” contaminates a lot of thought and discussion about what marriage actually is. Marriage is a special sort of relationship between two people, to be sure, but not every relationship is contractual, nor ought it to be.
4. The Torts of Love
Alfred, Lord Tennyson, wrote that “‘Tis better to have loved and lost / Than never to have loved at all.” And in seven states of the Union to this day, Lord Tennyson was surely right, because having loved and subsequently lost, you may very well have picked up a viable tort cause of action!
The tort of alienation of affection is the most common “heart balm law” out there. If someone breaks up your nice marriage, why not sue them? Here’s what you have to prove:
1. Plaintiff and plaintiff’s spouse were happily married, with genuine love and affection (not necessarily free from all problems) existing within that marital relationship.
2. The love and affection was alienated (that is, destroyed, or diverted elsewhere).
3. The reason for the loss of love and affection were the result of wrongful and malicious actions by the defendant.
Sexual intercourse may have taken place typically gives rise to a rebuttable inference of malice. A typical defense to malice is lack of knowledge of the existence of marriage.
Note that sexual intercourse between the plaintiff’s spouse and the defendant is not necessary. In theory, anyone who maliciously breaks up a marriage or renders it loveless can be found liable for this — giving rise to claims like “My mother-in-law turned my husband against me!”
The tort of “criminal conversation” is a bit easier to prove, having only two principal elements:
1. Actual marriage between the plaintiff and the plaintiff’s spouse; and
2. Sexual intercourse between the plaintiff’s spouse and the defendant during the marriage.
Note that knowledge of the fact that one’s sexual partner is married is not an element of the tort, and therefore it is not a defense to the tort. So some dude you met at the bar and figured “what the hell, he’ll do,” well, you might not say that if you knew he was married. But he might lie to you and say he’s not married so as to not obstruct his opportunity to bump uglies, and the next day you’ll find his wife suing you for having slept with her husband and you’ve got no defense to it. Doesn’t seem even remotely fair to me. Seems like the wife might have some sort of a moral right to take a Louisville Slugger to both of the headlights on his pretty little four-by-four, but that’s between husband and wife and more important, not a civil lawsuit for damages against someone whose only failure was an inability to take her whiskey.
Most states have abolished these common law causes of action. However, alienation of affection and criminal conversation remain viable tort theories in Illinois, Mississippi, New Hampshire, New Mexico, North Carolina, South Dakota, and Utah. Not even three years ago, a court in North Carolina gave a thirty million dollar judgment in favor of the ex-wife of a wealthy businessman, and against the former girlfriend who subsequently had married the man.
Perhaps the most interesting defense to these tort theories is “connivance.” If the plaintiff did something to induce the spouse to cheat, or if the plaintiff consented to the affair, then that’s a complete defense to the tort. So if there is an “open marriage” arrangement or some similar sort of consent, the suit fails. If you sent in a honey-pot to see if your spouse could be tempted, the suit fails. Also, if you were separated, the suit fails.
In states where these kinds of claims are still viable legal theories, they are typically employed as means of enhancing one’s bargaining strength in negotiations concerning division of property appurtenant to a dissolution of marriage. Gratefully, the majority of states agree with me that the whole notion of suing your spouse’s lover to recover tort damages seems desperately silly and have enacted “heart balm” statutes that formally abolish these causes of action. They apply to more general sorts of torts, such as intentional infliction of emotional distress, as well as to the formal claims described here.
5. Faulty Divorce
The notion of tort claims as supplements to dissolution of marriage actions becomes all the sillier when one considers that the trend in the law is to move towards no-fault divorce. A majority of states have no-fault divorce laws, in which whichever party is thought to be somehow morally at fault for causing the failure of the marriage pays some sort of penalty to the other party when it comes time to deal with arrangements for the custody of children and the division of marital property.
Divorces are among the most emotionally wrenching of all kinds of law. And they are also either the most common, or the second-most common, way by which ordinary people interact with the courts. The competitor is traffic tickets, something which guarantees that for about 90% of the population, the only time they interact with the court is when they are getting divorced or getting punished for speeding. No wonder people don’t like the legal system: nothing good ever happens to them when they go to court.
The law of divorce is a classic facet of study in legal evolution. In the early nineteenth century, the spiritual idea of a marriage as a contractual union between man and wife resulting in a single entity was taken as close to literally as it could be the law — the resulting union was called “the husband.” Under the doctrine of coverture, the woman came under her husband’s oversight and protection, with the emphasis on “oversight.”
The doctrine traces back explicitly to Norman common law, imported to England from what is today France in the eleventh century. It traces back to the Roman concept of paterfamilias, by which the male head of a household was entitled by law to control and discipline his own home as he saw fit — up to and including killing his slaves, children, or wife, if that was necessary. (Actually doing this was generally condemned; the paterfamilias was supposed to hold the heavy power but only ever wield it with a very light hand, “light” being a somewhat relative term.)
Coverture was gradually abandoned out of the law at roughly the time of the women’s suffrage movement, but relics of the doctrine persist in many states. One of the ways it persists is resistance to the parallel movement towards no-fault divorce.
For me, it’s easy to take the idea of no-fault divorce for granted: if someone doesn’t want to be married, then that person shouldn’t be married, and the law should not force someone to stay married. But religious teachings, particularly Christian religious teachings, discourage divorce as sinful. So obstacles to divorce got written into the law. A spouse seeking a divorce would need to show any of a number of “reasons” why the marriage should be dissolved — abandonment, abuse, adultery, consanguinity, impotence or infertility, or failure to consummate. Note the assumption built in to the bulk of these “causes” that procreative sex is the underlying reason for marriage.
But as a practical matter, people simply fall out of love. Some thinkers in the late nineteenth and early twentieth century therefore devised a shortcut around the generally more sexually-driven causes for divorce by creating a new “cause,” called “irreconcilable differences.” Which gave pretty much anyone who wanted out of a marriage a path out — “We just don’t get along” becomes a good cause for marriage.
This wasn’t all. The old laws also tried to encourage good marriages, by imposing a financial penalty upon the party found to be “at fault,” and requiring judges to delve into issues of who cheated on who first, or who was abusive or neglectful or who was less interested in sex with the other. The divorcing parties were given reason to throw all of this drama around because the party found to be “at fault” for the divorce would forfeit a portion of the marital estate.
Now, you can imagine how much fun most judges, and indeed most juries, found delving in to random peoples’ sex lives to be. Other peoples’ interpersonal dramas are at best horridly insipid. And so the result of many of these cases was a finding that both parties were equally at fault, so no penalty on either party would be assessed.
Some states, but not all, have dealt with this by adopting “no-fault” divorce, dispensing with the reasons why people get divorced or who caused the marriage to fail. At least one spouse says that it did fail, that’s about all that the law needs to know, so split up the marital estate, figure out what’s going to work best for any minor children, and be done with it. And some states have hybrid systems, where fault divorce and no-fault divorce co-exist.
And some other states, in an apparent effort to discourage divorce, impose waiting periods between the time a petition for divorce is filed and when a decree of marital dissolution is issued. These are sometimes called “reconciliation periods,” and the couple are encouraged to attend therapy together and to seek a way to return to their marriage. Whether this is appropriate for the law to do, or not, is a question I leave to you.
The law is a clumsy, blunt tool to insert into delicate, malleable relationships. Love thrives in an atmosphere of freedom and autonomy. Peoples’ autonomy deserves respect, and in a free society, the law should generally be subordinate to that idea. So when other people create rules that govern how, when, and who you love, it generally isn’t going to work out well. Rather, when the rules are crafted to let people do as they will, love can flourish.
In classical art, Venus and Justicia, or alternatively Aphrodite and Athena, were typically not depicted together. The Norse never named the wife of Týr (with whom Loki slept to taunt him) and I cannot find a Norse myth in which Freja interacts with Týr. In Hindu myth, the love-god Kamadeva interacts with Shiva by shooting him with a love-arrow, much like Eros/Cupid in classical Greco-Roman myth — and Kamadeva is rewarded for rendering Shiva thus vulnerable to others by being incinerated by the great god. Nor am I aware of any Egyptian myth in which Ma’at, the goddess of justice, interacts with Hathor or Isis, the early and later divine representations of love.
The mythmakers and the artists realized something important here. We live in a world with both law and love. We need both; they are thus intellectual housemates in our society. But they are housemates who do not get along particularly well and the rest of us who share space with them should do our best to see to it that they remain segregated as much as possible.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.