Tuesday, May 5, 2009

Should married people be NFL-like 'free agents'?

Now that the U.S. has seen same-sex marriages, it has now seen same-sex divorces. Therefore, marriage has not been strengthened by the widened definition.
Tuesday, May 05, 2009
By James Thunder

It was not long after our country saw the first same-sex marriages that we saw our first same-sex divorces. Whatever the truth of the argument that same-sex marriage threatens traditional (heterosexual) marriage, the legalization of same-sex marriages, including the recent legalization by the Iowa Supreme Court and the Vermont legislature, certainly do nothing to strengthen marriage.
Because I am a lawyer, when I hear people argue that “we” need to “strengthen marriage,” I consider first how the law might provide such a tool. One type of law that could strengthen marriage has been the subject of state legislation, state court decisions, and law review articles over the past 70 years. Nonetheless, there has never been much public debate. To the extent that there was been public debate over this type of law, the law has been derided and I maintain wrongly so.
Under what is called “the common law,” spouses had two different causes of action available to them to protect their marriages. One was called “criminal conversation” which required an act of adultery but did not require knowledge by the defendant of the marital status of the married party or breakdown of the marriage. The other was called “alienation of affections” which did not require adultery but did require knowledge by the defendant of the marital status and breakdown of the marriage. These causes of action have been derided as “heart balm” torts, that is, they are brought by jilted parties to soothe their broken hearts.
During the past year, opponents of Proposition 8 in California claimed that rights once granted could not be abolished. That is plainly not so since state supreme courts and state legislatures in 40 of our states have abolished the right of spouses to call upon the law to protect their marriages. One example is the Supreme Court of Missouri’s action in the 2003 case of Helsel v. Noellsch, 107 S.W.3d 231.
The courts and the legislatures that have abolished these marital rights have done so on various grounds. As I repeat them, I will refute them, using arguments made by judges and law review authors. At the same time, I will describe some ways in which our legislatures, rather than scuttling these rights, could modernize them by establishing a cause of action labeled “interference with marital relations.”
1) These causes of action originated in previous centuries when a wife was regarded as a property interest of the husband and the husband utilized these causes of action to protect his property. This is true, but there has been no question that, in modern times, a woman has had as much right as a man to utilize these causes of action. Certainly, the legislature can modernize these rights to ensure that both husbands and wives could bring suit.
2) These causes of action are able to be used only against the rich because lawyers will not represent a plaintiff unless the prospective defendant has a deep pocket. This has also been true, but this argument could be used against a host of causes of action. Again, our legislatures could ensure that suits against defendants of modest means would be financially viable. For example, they could ensure that the loser pays the winner’s attorneys’ fees.
3) These causes of action are vindictive because they are brought only after the marriage has been destroyed and cannot be restored. Several responses. First, given the description above of the two types of causes of action, this argument would only be true for “alienation of affections” not “criminal conversation.”
Second, modern legislation providing for “interference with marital relations” could allow for suits prior to the breakdown of the marriage by providing for injunctive relief in the form of protective orders against interlopers -- just as our legislatures have provided for the issuance of protective orders against abusive spouses and stalkers.
Third, it is not generally thought that the vindication of one’s rights in a court of law is being vindictive. Fourth, this argument could be used against a host of causes of action in which money damages are sought. Lawsuits alleging breach of contract are brought after the contract has been breached and most likely cannot be restored. Fifth, this argument fails to consider the deterrent value of the right to sue. For example, the ability to sue for breach of contract is not successful in deterring all breaches of contract. Law is not a cure-all, but an aid.
4) The amount of money damages cannot be ascertained by a jury. What is a marriage worth? The courts and legislatures in the 40 states which have deprived spouses of a right to sue interlopers have set a value on marriage -- at zero. In fact, it would be an easy thing for legislatures to specify damages in various ways. For example, since the interloper is a home-wrecker, damages could be the price of a median existing home in the area. If we can determine a monetary value in the case of the wrongful death of a spouse, we should be able to determine the monetary value of the wrongful death of a marriage.
5) Only weak marriages are susceptible to interlopers and the weak marriages would have failed for some reason anyway. Should the law not be used to help weak marriages? In so many fields of law, our laws come to the aid of the vulnerable. Our society should encourage the strengthening of weak marriages – not deprive the weak marriages of the aid of the law and let predators exploit the situation. Besides, even strong marriages have their weak times and their lifelong weaknesses.
Since the arguments to abolish these rights have been and can be so easily be refuted, there must be a deeper, unstated, reason why 40 of our courts and legislatures have abolished them.
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