The Women's Freedom Network Newsletter September/October, 2002;  Volume 9, No. 5 The Politics of Family Destruction By Steven Baskerville (Adapted from his article published in Crisis, November, 2002)

Yet the more polarized the issues become the less willing we are to look at the hard politics of the family crisis. Family policy is still discussed in terms set by therapists and social scientists: the rate of divorce and unwed motherhood, the level of poverty, the impact on children, the social costs. As if we don't know.

As a social scientist, I do not deny the value of data (I intend to marshal some myself). But therapeutic practitioners have established such a hold over family policy that they have paralyzed our capacity to act. Writing on single motherhood in Commentary magazine, James Q. Wilson, grimly concludes, "If you believe, as I do, in the power of culture, you will realize that there is very little one can do." Like many others (including the Bush administration), Wilson is reduced to advocating counseling and "education."

What seems missing here is old-fashioned politics, the kind that did not hesitate to make moral judgments and even express outrage. The politics of the prophets, for example. The facts are well established among social scientists, but a kind of ideological correctness on both left and right seems to keep us from confronting the full implications of what we know. We are afraid to challenge the accepted cliches about marriage breakdown, even when it becomes clear that they don't correspond to the evidence.

We should begin, therefore, with the uncontested but seldom-mentioned facts. First, marriages do not simply "break down" by themselves. Legally, someone -- and it is usually one -- consciously ends it by filing official documents and calling in the government against his or her spouse. According to Frank Furstenberg and Andrew Cherlin, the authors of Divided Families, some 80 percent of divorces are unilateral. One spouse usually wishes to keep the family together.

When children are involved, the divorcing parent is overwhelmingly likely to be the mother. Scholarly studies by Sanford Braver, Margaret Brinig, and Douglas Allen,

Under no-fault laws, divorce has become a means not only of ending a marriage but also of seizing monopoly control of the children, who become weapons conferring leverage backed by penal sanctions.

and others estimate that between 67 and 75 percent of such divorces are instigated bv the mother. Feminists and divorce attorneys report that the number is actually closer to 90 percent. Few of these divorces involve grounds like desertion, adultery, or violence. "Growing apart" or "not feeling loved or appreciated" are the usual explanations.

The divorcing parent is likely to get custody of the children and coerced financial payments from the divorced parent. Brinig and Allen even concluded that of 21 variables, "who gets the children is by far the most important component in deciding who files for divorce."

Clearly more is at work here than husbands and wives deciding to go their separate ways. Under no-fault laws, divorce has become a means not only of ending a marriage but also of seizing monopoly control of the children, who become weapons conferring leverage backed by penal sanctions. The devastating effects of divorce and fatherlessness on both children and society are now so well known that there is no need to belabor them here. What is seldom appreciated is the broader threat the divorce regime poses to ethical and constitutional government. In fact, there is today no better example of the link between personal morality and public ethics -- between the fidelity of private individuals and the faithfulness of public servants -- or the connection of both with the civilized order.

The politics of divorce begins in family court, a relatively new and little-examined institution. Family courts are usually closed to the public and their proceedings are usually unrecorded. Yet, they reach further into private lives than any other arm of government. Though lowest in the hierarchy, they are "the most powerful branch of the judiciary," according to Judge Robert Page of the New Jersey family court. "The power of family court judges is almost unlimited," Page writes.

Secret courts have long been recognized as an invitation to chicanery. "Where there is no publicity, there is no justice " wrote Jeremy Bentham. Judges claim the secrecy protects family privacy, though in fact it seems to provide a cloak to violate family privacy and other protections with impunity.

Family court judges are appointed and promoted by commissions dominated by bar associations. That means they are answerable to those with an interest in maximizing the volume of divorce litigation. Though family courts complain of being "overburdened," it is clearly in their interest to be overburdened, since judicial powers and salaries are determined by demand. The aim of the courts, therefore, is to increase their workload by attracting customers, and the divorce industry has erected a series of financial and emotional incentives that encourage people to divorce ranging from child support to restraining orders.

In the decades since the inception of no-fault divorce, family law has gradually become an ethical cesspool. Attorneys charge that tapes and transcripts of hearings are routinely altered in family court. When a client complained about tampering and other irregularities, he was assessed $3,500 for attorneys he had not hired and jailed without trial by the same judges whose tapes were allegedly doctored.

The corrupting power of forced divorce now extends beyond the judiciary. In 2000, four leading Arkansas senators were convicted on federal racketeering charges connected with divorce. Once scheme involved hiring attorneys to represent children during divorce,

The aim of the courts, therefore, is to increase their workload by attracting customers, and the divorce industry has erected a series of financial and emotional incentives that encourage people to divorce, ranging from child support to restraining orders.

a practice generally regarded as a pretext to appoint cronies of the judge. In the April 29, 1999, edition of the Arkansas Democrat-Gazette, John Brummett wrote that "no child was served by that $3 million scam to set up a program ostensibly providing legal representatives to children in custody cases, but actually providing a gravy train to selected legislators and pals who were rushing around to set up corporations and send big checks to each other."

The divorce industry depends on the widespread violation of what most people still hold to be the most solemn promise one makes in life. It is no coincidence that public officials whose livelihoods depend on encouraging citizens to betray their private trust will not hesitate to betray the trust conferred on them by the public. Likewise, a society where private citizens are encouraged not to honor their commitments is a society that will not hold public leaders to their promises. Maggie Gallagher's observation that marriage has become "the only contract where the law now sides with the party who wants to violate it" raises the question of whether we are willing to allow our government to be an active party to deceit and faithless dealing.

Our present divorce system is not only unjust but fundamentally dishonest. For all the talk of a "divorce culture " it is not clear that most people today enter the marriage contract with the intention of breaking it. "If the marital vows were changed to '...until I grow tired of you,' or '...for a period of five years unless I decide otherwise,' and the state were willing to sanction such an agreement, then divorce would not be such a significant event from a moral point of view," attorney Steven L. Varnis writes in Society. "But there is no evidence that the content of marital vows or marital expectations at the time of marriage has changed." Varnis may be only half-right, but even so, the point is that the marriage contract has become unenforceable and therefore fraudulent. Until this changes, it seems pointless and even irresponsible to encourage young people to place their trust and their lives in it.

One may argue that government should not enforce the marriage contract, or any contracts for that matter (though the Constitution holds otherwise). But I am not aware of anyone who suggests that government should be forcibly abrogating contracts, let alone luring citizens into contracts that it then tears up. If we truly believe our present divorce policy is appropriate, we should at least have the honesty to tell young people up front that marriage provides them with no protection. Let us inform them at the time of their marriage that even if they remain faithful to their vows, they can lose their children, their home, their savings and future earnings, and their freedom. Not only will the government afford them no protection; it will prosecute them as criminals, though without the due process of law afforded to formally accused criminals. And let us then see how many young people are willing to start families.

It is one thing to tolerate divorce, as perhaps we must do in a free society. It is another to use the power of the state to impose it on unwilling parents and children. When courts stop dispensing justice, they must start dispensing injustice. There is no middle ground.