Published in SOCIETY - MAY/JUNE 1999. Pages 43-52. Social Science and Public Policy

America's Divorce Problem

Steven L. Nock, James D. Wright, and Laura Sanchez

0n August 15, 1997, Louisiana made an historic change in its domestic relations laws by enacting the nation's first "covenant marriage" bill. Following Louisiana's lead, Arizona enacted similar legislation in May 1998 and other covenant marriage (CM) bills are now under consideration in at least twenty additional states. It thus appears that we are on the front end of a covenant marriage "boom" that could soon sweep across the nation. Here we consider just what covenant marriage is and why it is a concept whose time appears to have come. We also take up and respond to the most common objections or reservations that people have expressed about it.

What is "Covenant Marriage?"

Couples wishing to marry in Louisiana are now required to choose between two marriage regimes: the standard marriage with virtually unrestricted access to no-fault divorce or a covenant marriage designed to be somewhat harder both to enter and to exit. The covenant option specifically acknowledges that marriage is a lifelong commitment and differs from conventional marriage in a number of additional ways:

- Covenant marriage requires premarital counseling. Counseling must include discussions of the seriousness of marriage, the lifelong commitment being made by the couple to their marriage, the obligation to seek marital counseling if problems arise later in the marriage, and the exclusive grounds for divorce or legal separation in a covenant marriage. Couples must sign an affidavit acknowledging their commitment and prove that they have received counseling on these issues.

- Likewise, divorce from a covenant marriage requires the couple to have sought marriage counseling and to have made a good-faith effort to resolve their differences.

- Although a no-fault divorce is still possible for covenant marriages, the new law requires that the couple live separate and apart for two years (vs. six months under the current marriage regime) or be legally separated for eighteen months. Dissolving a covenant marriage in less than two years requires one person to prove fault on the part of the other. Acceptable "faults" are the traditional ones: felony conviction, abuse, abandonment, or adultery. Irreconcilable differences, general incompatibility, irretrievable breakdown of the marriage, or "we just don't get along any more" are not acceptable grounds for divorce, so if these are the problem, then you have to wait the full two years.

- Newly marrying couples must choose either the covenant or the standard regime. It is not true that the law requires new marriages to be covenants or abolishes the standard regime (a point about which there has been some confusion).

- And finally, the law allows currently married couples to convert (or as proponents prefer, "upgrade") to covenants.

(The Arizona law differs in some details but is essentially the same as the Louisiana law, and the same is true of CM bills now under consideration in other states.)

Hailed by some as the solution to America's divorce problem and denounced by others as a huge step backwards, covenant marriage will prove to be neither. Or such in any case is our working hypothesis after the first year in a long-term effort to evaluate these emergent covenant marriage regimes. On the positive side, the transparent intent of the law is to make marriage a more enduring commitment (indeed, a lifelong commitment) by requiring couples to receive counseling both before they get married and later when difficulties arise, and by making divorce more difficult to achieve. The law is also clearly intended to promote a more sober consideration of the commitments and obligations that marriage entails. These, we believe, are undeniably good things. On the negative side, we are quick to acknowledge that familial well-being is threatened by any number of large-scale social, economic, and political forces, that marriages go sour for many reasons, only a few of which can be anticipated in advance, and thus that a couple who has consummated a covenant rather than standard marriage has, in reality, done relatively little to stave off the forces that will buffet them in the years ahead.

Why Some People Like the Idea...

Since the 1970s, all states have had virtually unrestricted no-fault divorces available to any married person who wanted one. The only restriction in most cases is a waiting period that can be as short as a few months and is rarely more than a year. The no-fault revolution, successful everywhere, was motivated by a belief that the former marriage regime trapped many women and children in difficult, abusive, or otherwise unsatisfactory marriages. Shifting cultural values about divorce, remarriage, and related issues were also contributing factors. Divorce rates, of course, had been going up prior to the no-fault movement and continued to go up thereafter; in the last decade, they have finally begun to come down. The effects of no-fault divorce on overall divorce rates are still debated among specialists, with a rough consensus that no-fault divorce produced a short run increase in divorce rates, but that the long-term increase was probably the result of other factors.

No-fault divorce is itself a controversial concept. Among many feminists and other progressive thinkers, the old marriage regime was a prison that trapped women in lousy relationships. No-fault divorce makes it much easier to terminate these relationships, thereby increasing women's options, and is therefore unambiguously good. By the same logic, anything that would seem to decrease women's options or make divorce more difficult to attain (such as CM) is unambiguously bad. Among pro-family advocates and other traditionalists and social conservatives, on the other hand, no-fault divorce is seen as having created a "divorce culture" where traditional values of love, fidelity, commitment, and obligation are no longer respected. By making divorce so easy to obtain, the no-fault regime has ruined the lives of countless people, many of them children who are emotionally traumatized by divorce, and many others women whose financial well-being is ruined when their marriages fall apart. For many traditionalists, no-fault divorce has been the root of much evil and is unambiguously bad; CM attempts to stem the no-fault tide and is therefore to be encouraged and promoted.

The covenant marriage "movement" (it Is not premature to refer to such a thing), and the larger anti divorce movement of which it is a part, stem from widespread dissatisfaction with the current social and legal landscape of marriage and divorce and a concern that no-fault divorce laws have come to threaten the institution of marriage itself. Politically, then, covenant marriage is motivated by the same concerns that brought us the "Defense of Marriage" Act and our current national obsession with so-called family values. Many contend, with some evidence, that the no-fault regime has fostered a model of marriage as a contract with the state acting as the neutral enforcer of the bargains struck by self-interested parties. This, it is said, often leaves women vulnerable, harms the interests of children, and undermines the general social welfare; at the very least, it is destructive of values of caring and commitment that produce stability in families. Others argue that no-fault divorce has transformed marriage into an illusory contract that provides no remedy for the breach of marriage vows. In this view, easy no-fault divorce encourages (or at minimum fails to discourage) opportunistic behavior by husbands and threatens the marital investments of wives.

Whatever the pathways of cause and effect, divorce rates in the United States are generally high and most research in the past decade suggests that our previously casual attitude about divorce and its consequences for people, particularly children, was myopic. It seems obvious that there is something akin to a "divorce culture" in the United States today and that, in many cases, the effects of this culture are more deleterious than beneficial. This view is clearly shared by many state legislators who are now trying through covenant marriage laws and other methods to resurrect notions of fault in marital dissolution, to create rules for marital termination that protect the interests of wives and children, and to recover a world in which marriage Is a privileged and respected status. An interesting question, one we will be looking into over the next several years, is whether CM laws actually have any of these effects.

Many people fail to appreciate that CM as enacted in Louisiana and Arizona changes the terms of all marriages in a unique way. In no other state must marrying couples decide which system of laws will govern their marriages. By forcing couples to decide between covenant or conventional marriage, the law introduces an element of contractual negotiation about the terms of the marriage relationship. At minimum, this requires couples to contemplate and discuss their own chances for a divorce and to express their understandings about the meaning of marriage. Another question we'll be investigating is whether the new law changes the terms of negotiation between men and women as they contemplate then realize their own marriages.

CM laws force couples to choose whether they want a covenant marriage or not. Those who do voluntarily forswear a "quick and dirty" no-fault divorce and acknowledge publicly and legally that they are making (or in the case of upgraders, have made) a lifetime commitment to each other-a commitment, to be sure, that can still be broken if necessary, but not easily or hastily. In many respects, or so it seems to us, covenant marriage simply adds to the marriage vows a clause that affirms, "...and we really mean it!" What objection could possibly be mounted to anything that helps couples take their marriages more seriously if that is, indeed, what they have freely chosen to do? Or that might assist them in keeping their marriages together some years in the future?

... and Others Hate It

The fact is, covenant marriage has been publicly opposed by progressives, feminists, traditionalists, and religious leaders, although for very different reasons in each case. Some of the opposition reflects simple misunderstanding . Some reflects legitimate concerns about the possible effects of the covenant regime. Herewith, an overview of the emergent terms of the CM debate:

One thing leads to another. If it accomplishes nothing else, CM creates two distinct kinds of marriage governed by separate legal restrictions and requires couples to choose between them. Well, if there can be two systems of marriage rather than only one, then why not three? Or four'? Or dozens? Some fear, not without justification, that covenant marriage takes a treacherous first step towards a plurality of marital regimes and that the next steps might be legal recognition of such things as gay marriages, or trial marriages, or marriages of convenience, or even polygamy and God knows what else. Once we have started down this path, where will it end?

Walter Olson, writing in Reason magazine about the surprisingly lukewarm reception afforded covenant marriage in conservative circles, sees this as the traditionalist's major concern. "Any step that would explicitly 'redefine marriage' even in a traditionalist direction-is dangerous," Olson says, "because it opens the door to the idea of further redefining it by an act of will" (see "Free to Commit," Reason, October 1997, p. 62). Letting couples choose between one kind of marriage and another is especially perilous, first because this encourages people "to think their obligations might be shapable in part by mutual will rather than by prescriptive authority alone," and secondly because "once you let in the notion of choice ... you start 'privatizing marriage,' giving the other side a basis to argue for a dozen other choice based innovations in family law, from 'trial marriage' to same-sex unions-not to mention divorce by genuine mutual consent."

The irony in all this cannot pass without comment. Covenant marriage arose in Louisiana (and pretty much everywhere else) as an issue of the religious right and as part of the national "defense of marriage" movement. The "defense of marriage" movement (and the ensuing 1996 "Defense of Marriage" Act) was in turn a reaction to a suit brought by gay couples against the state of Hawaii alleging discrimination because they were not allowed to marry. As this case made its way to the Supreme Court, many states came to realize that an unfavorable decision could effectively legalize gay marriage everywhere, and so state after state rushed to enact legislation that would survive Court scrutiny, outlaw gay marriage, and free the state from having to recognize gay marriages performed elsewhere. The Congress solidified these separate state efforts with the 1996 Act affirming that marriage is between "one man and one woman"-what amounts to a national prohibition against gay marriage. In Louisiana and Arizona, part of the "defense of marriage" effort was a covenant marriage bill-which, by admitting free choice into the marital contract, might pave the way (or so many fear) for a wild proliferation of marital regimes, including gay marriage itself!

Not everyone is opposed to a plurality of marital regimes; indeed, a persuasive argument can be made that the law should grant consenting adults pretty wide latitude in defining their intimate relationships to one another and in coming to legally acknowledged understandings between themselves about the sharing of property, debts, and domestic chores, about childbearing and child-rearing, and about the agreed-upon terms through which their relationship can be dissolved. The issue would be neither here nor there to that immense majority of married people in this country who arrange their lives in broad accord with a rather simple and traditional model of matrimony.

On the other hand, there are also persuasive arguments against a proliferation of marital regimes, and if the "one thing" of covenant marriage did lead to "another" thing or two, there would be some cause for concern. Warts and all, a conventional monogamous heterosexual marital union is an institutionalized feature of this and nearly all other societies. Broad consensus exists about what it means to be a wife, a husband, a married father or mother. These institutionalized roles are embedded in our cultural understanding of things and allow us to make realistic assumptions about individual and family life. What if this were not so?

Consider another realm where a complete redefinition of social roles has already occurred. Research in reproductive biology and associated developments in reproductive technology have completely, utterly, and permanently transformed what it means to be a "parent." When a woman has a viable egg removed from her ovary, has it fertilized in a test tube by sperm from an anonymous donor, and then has the embryo implanted in and carried to term by a surrogate mother, it is fair to say that old-fashioned notions of "mother," "father," and "parent" have been redefined! The resulting child could have as many as five "parents" (sperm donor, egg donor, gestational mother, contracting father, and contracting mother), not including additional parents and step-parents that might be picked up along the way through cycles of divorce and remarriage. The problems associated with these births are already frequent enough to be well-known. To illustrate, there have been cases of children being born to surrogate mothers after the 'contracting' couple divorces and renounces all desires for the offspring thus producing a child that no adult wants or is prepared to take legal responsibilities for. Likewise, legal ownership (custody?) of viable frozen embryos has been an issue in more than one recent divorce. Shared understandings of social roles, role relationships, and associated behavioral expectations are the glue that holds societies together and we should therefore be cautious about fundamental redefinitions of these most basic adult roles.

Marriage and divorce are not the government's business. A participant in one of several focus groups we have convened to talk about covenant marriage expressed her misgivings thusly: A don't think big government should step in. I don't like the thought of government [being] involved in these issues." Another participant in the same group expressed the same opinion. "I don't think government should interfere in trying to keep marriages together." Said another, hastening to agree, "Yeah, it scares me to have someone have control over my life like that." "I don't think government can deal with issues of morality," added a fourth.

The idea that things like marriage and divorce are not the proper business of governments was a surprisingly common theme in nearly all of our focus groups. Because of the religious origins and symbolism of covenant marriage, many were concerned that the new law violated the doctrine of the separation of church and state. The reality, of course, is that federal, state and local governments require people to obtain licenses and have blood tests before they can get married, grant authority to perform marriages, say who can marry and who cannot, establish minimum ages at which persons can marry without parental consent, set waiting periods for divorce, specify the terms of divorce, adjudicate disputes among divorcing couples about the distribution of their common property, award custody of children, place children in foster care, define appropriate sexual partners and sexual acts, and otherwise find ways-for better or for worse-to regulate practically every aspect of our intimate relations with others. Has government no right to do any of this?

Moreover, while the objection to state involvement in marriage was a common theme in our focus groups, not one person objected to (or even found fault with) the state's involvement in the consequences of divorce. Though the state is viewed as having no legitimate interest in fostering stronger marriages, it is apparently viewed as responsible for picking up the pieces when marriages fail-an evident contradiction. Since the state must pay for much of the individual and aggregate costs of welfare, diminished educational attainments, higher rates of out-of-wedlock births, and other problems that are clearly among the consequences of divorce, the state has a very legitimate interest in minimizing these costs. Indeed, one wonders why there was so little concern about the public expenditures associated with divorce throughout the recent debate over "reforming" welfare. One obvious way to 'reform' welfare would be to strengthen marriages.

A couple of decades ago, governments everywhere relaxed the standards for divorce and removed proof of fault as a condition for divorce. In this fashion, governments took away a divorce regime that attempted to keep marriages together, even bad marriages, and gave couples a no-fault regime where marriages were and are very easy to dissolve. Can it now be legitimately said that government has no right to allow marrying couples to freely deprive themselves of the presumed "benefits" of the no-fault system if they want to?

The benefits of counseling, both before and after marriage, are overstated. To the extent that CM is an effort to make marriages stronger (and not just harder to get out of), it is through the mandatory counseling provisions, and people on all sides of the debate express doubts about the likely efficacy of these provisions. One of our focus groups, this involving about a dozen members of the Louisiana chapter of the National Organization of Women (NOW), hit this theme with particular force: "You know, the knee-jerk reaction is [that] counseling is a good thing. Well, counseling with whom?" The group expressed particularly skeptical opinions about the counseling that couples might receive from priests, ministers, rabbis, and other religious leaders. One participant characterized this form of counseling as "Indoctrination 101." Much of the concern was that religious-based counselors would simply tell women, "you should quit your job and serve your husband, like it says in the Bible." Or urge that all marriages, even profoundly destructive and abusive ones, should be preserved no matter the cost.

There is nothing in the Louisiana law (or in Arizona's) to protect couples from bad counseling or to establish minimum standards of training or performance for counselors, whether lay or religious, so the concern with the quality of the required counseling experience is certainly legitimate. On the other hand, one need not be an enthusiast for the counseling profession to acknowledge that young couples might profit from an extended discussion of marriage, commitment and fidelity with a concerned adult sometime prior to the wedding. Amatai Etzioni has noted that about 20 percent of those who receive premarital counseling decide not to marry their would-be spouse, so it is clear that at least some people derive value from the experience (New York Times, August 13, 1997). Testimony from psychiatrists and psychologists is recognized as valid and helpful in various legal proceedings; counselors' opinions are frequently sought in custody cases to determine which parent a child will live with. Granted, premarital counseling will not prevent all bad marriages from occurring and postmarital counseling will not solve every problem that arises in a marriage, but the conclusion that there is no value at all to be derived from the counseling process seems harsh. Probably, the value lies less in the advice couples are given than in the process of confronting and discussing the possibility that the marriage will not last, the seriousness of each partner's commitment to the other, the expectations each brings to the marriage. Frank and sober reflection on these points can hardly be a bad thing.

At the same time, the counseling requirements raise important questions about training, licensure, and certification of counselors. The Louisiana law allows any priest, minister, rabbi, clerk of the Religious Society of Friends, any clergyman of any religious sect, or lay marriage counselors to offer the required premarital and marital counseling. If Louisiana (or any other state) is going to require counseling for whatever reason, there is presumably some obligation for the state to set appropriate standards for training and continuing professional education, to issue licenses, and to provide some assurance that minimum quality standards will be upheld. And what of the covenant couple who wishes to divorce but who cannot afford the required counseling'? Must the state make counseling available to all, regardless of their ability to pay?

Covenant marriage won't work because people will always find a way to get divorced if they want to. The "full faith and credit" clause of the Constitution requires that marriages entered legally in one state be recognized as legal in others (so long as they do not violate state law). The same is true of divorce. Indeed, prior to the institution of no-fault divorce, there was a small industry in towns like Las Vegas and Reno that depended entirely on the fact that divorces granted in Nevada were recognized as legal divorces everywhere else. So while a covenant couple married in Louisiana will have a harder-than-average time divorcing in Louisiana, there's nothing to stop them from driving to Mississippi or flying to Nevada to dissolve their marriage and thereby to subvert the "fault" provisions of their covenant marriage.

An old saw among divorce researchers is, "You can't get the toothpaste back in the tube." Likewise, once the toothpaste is out of the tube, most couples will find some way to clean up the mess regardless of the original terms of their marriage. As Olson puts it in his Reason article, "the whole CM effort may prove beside the point if covenanters who change their minds can simply hop the border and file for divorce in another state whose laws do not recognize the covenant option."

We have no quarrel with the conclusion that couples intent on dissolving their marriages will always find ways to do so. But would the original marital covenant give the aggrieved party, usually but not always the wife, grounds for a civil suit to recover damages resulting from the breach of the marital contract? Could the jilted spouse sue for recovery of the marital investment, most of all once the fault of the other spouse had been alleged and proven? It will be some years before we know for certain the answers to these questions but it will be a brave soul indeed who decides to be the first to find out. Even if covenant marriage does not prevent or even postpone many divorces, it may well provide the victims with awesome new legal weaponry by which to extract revenge. The potential deterrent effects of this on male opportunism, sexual antics and adventures, and related peccadilloes probably should not be dismissed out of hand.

Covenant marriage is a return to the "bad old days " where women and children were often trapped in unsatisfactory marriages (or worse). Marriage can be and often is a prison for women and covenant marriage just puts more guards in the towers. Contemporary feminism has developed in part as a reaction against traditionally defined female roles, familial roles hardly to be excepted. No-fault divorce and the more general relaxation of traditional expectations about what women could and could not do was a hard-won and significant victory for the feminist cause and the rights won in that struggle are not to be lightly surrendered. In some variants of the feminist world view, efforts to strengthen marriage or prevent divorce are looked upon with misgivings because women tend to suffer when marriages are "strong." Said one focus group participant, "I'm not sure it is necessarily a bad [thing] to have easy divorces....l don't think divorce is necessarily the problem .... I don't think there's anything wrong with getting divorced or having it be easy to get divorced." Leaving women no way to escape from an abusive spouse is a particularly pressing concern.

Many who argue against covenant marriage on these grounds seem not to appreciate the provisions of the Louisiana law that allow immediate dissolution of covenant marriages in the face of a felony conviction, adultery, abandonment, or abuse. (It is, moreover, very hard to imagine a CM law enacted elsewhere that did not contain similar provisions.) Contrary to a common misconception, the two-year waiting period (or 18 month separation requirement) does not apply in these cases. On the other hand, if a couple wishes to dissolve their covenant marriage simply because they have decided they are no longer compatible, that too is allowed, but they have to wait the full two years (living separate and apart for two years satisfies the law's definition of abandonment).

The feminist rejoinder is that proving fault can be difficult, especially in cases involving domestic violence. Yes, judges can terminate covenant marriages if abuse can be proven. But will they? And will they do so in time? Allegations of fault may stimulate further attacks and more brutality; long waiting periods extend the woman's time at risk. In an unpublished editorial on CM, law professor and NOW activist Terry O'Neill has written, "A battered wife's justified fear of separation assault will loom that much larger when she must, in effect, reveal her plans (this is what pre divorce counseling can mean) to a man who may prefer to see her dead than allow her to leave."

On the other hand, it is hard to see how no-fault divorce protects women in this matter any more than a fault regime would, or how a covenant marriage protects them any less. Sooner or later in the process of terminating an abusive relationship, the wife has to "reveal her plans" and incur whatever risk the revelation entails. Otherwise, there is nothing the police, courts, or counselors can do. Any effort to persuade an abusive husband to stop it, or rather, any effort that goes beyond mere pleading, involves calling the abuse to the attention of someone with the authority or wherewithal to intervene. Nothing about covenant marriage per se changes the legal situation or interactional dynamics between abusers and the abused.

Some women in abusive relationships find a way to get out of them and in these cases, divorce is, fundamentally, a liberation. And some women make significant personal and economic sacrifices in the course of their marriages, particularly in the early years, only to watch the marriage dissolve as hubby goes lusting after his secretary or the Avon lady or the neighbor's wife (or husband), and in these cases, divorce is, just as fundamentally, a complete disaster. It is not obvious which of these constitutes the larger threat to the well-being of women as a whole. It is certainly likely that as many women (or more) will derive advantage from covenant marriages by the deterrent to male abandonment and sexual escapades as will be "trapped" in abusive marriages by the marginally tougher divorce provisions. But this too is a question worth researching.

Feminism notwithstanding, many women (and men) actively seek a lifetime marital commitment and do all they can to achieve it. Covenant marriage provides people of this description with weak guarantees (perhaps we should say with marginally stronger promises) that are generally not available under the no-fault regime. It is now conceded by almost all experts that, on average, women suffer more from divorce than men. In the majority of cases, men are better off financially, and women worse off, after divorce than before. In fact, about a third of all divorces result in the woman spending some time below the poverty line. In these all-too-common cases, women will gain more than they lose if divorces are harder to get.

Covenant marriage denigrates conventional marriage. The Catholic Church has expressed reservations about covenant marriage, in part because in the eyes of the Church, all marriages are covenants between a man, a woman, and God. Creating a separate legal status for covenant marriages therefore implies that standard marriages are inferior-"marriage lite," a barely passable imitation of the real thing. (The Catholic Church also objects to the premarital counseling provision because it requires a discussion of divorce, which the Church also does not recognize.)

By defining one category of marriages as "better" than another (and "better" can mean almost anything in this context-more romantic, more stable, more religious, more committed, more traditional), the covenant marriage option also opens up the possibility that couples will be coerced by parents, churches and even one another into accepting the covenant option ("real" marriage) when, in fact, they would prefer not to. A news release from the American Civil Liberties Union (dated August 18, 1997) makes the point: "The 'option' of a covenant marriage could constitute a form of emotional blackmail in which a reluctant man or woman is pressured into the contract and later regrets it."

In one important sense, this concern is not only well-taken but is pretty much the entire point of covenant marriage. Many people these days have a pretty casual attitude towards marriage and divorce, and it was certainly in the minds of Louisiana state legislators that covenant marriage might cause people to take these things more seriously and, indeed, restore marriage to a privileged, not to say honored, status in society. It is also true that marriage itself is frequently used as "emotional blackmail" through which men and women are sometimes pressured into doing things they'd rather not. Just how is covenant marriage any different'?

Civil libertarians have expressed deep concerns about religious coercion to enter covenant marriages. Katha Pollitt, a columnist for The Nation, expressed an on-air fear in a recent Nightline feature on the Louisiana CM law that "there will be a lot of psychological pressure on some people and more than psychological pressure, I think there'll be real religious pressure. In fact, some Louisiana churches are already saying we will only marry you if you sign a covenant contract."

The experience to date suggests that this concern, while valid, has been overstated. Pollitt's "some Louisiana churches" is in fact a single Presbyterian congregation in Baton Rouge that has announced that all its future marriages will be covenants. Several other churches perhaps a few dozen of them-have also begun to promote covenant marriage by either sponsoring congregation- wide "upgrades" (several thousand couples converted to covenant marriage in mass ceremonies on a single Sunday: Valentine's Day" 1998) or urging couples about to be married to consider the covenant option (statewide, there were about 750 "new" covenant marriages through the end of 1998). And while other churches may well follow these leads, even to the point of requiring covenant marriages, the much-feared stampede of churches begging, requiring, or otherwise coercing a flood of covenant marriages out of a recalcitrant flock has simply not materialized, nor is it likely to. As we have already suggested, many aspects of covenant marriage remain controversial even within the context of traditional Christian beliefs.

Through the first six months of the new covenant marriage regime, very few couples exercised the covenant option. In the past six months or so, between 2.5 percent and 3.0 percent of "new" marriages have been covenant marriages. This figure might rise somewhat in the coming years as more people learn about the option, but to the extent that young couples are being told that the option exists, the vast majority prove to be uninterested and it is very unlikely that CM will ever comprise more than five or so per cent of the total. So if there is any real "coercion" going on out there, it is definitely not very effective.

Divorce is not the problem but rather a symptom of the problem. Progressive and feminist critics of CM are nearly unanimous in their belief that bad marriages are the real problem and that no-fault divorce is therefore the solution, since the no-fault regime makes bad marriages easier to dissolve. These critics correctly see the CM "movement" as part of a larger "anti-divorce movement" which in turn can be indifferent to the often-exorbitant costs of bad marriages. None of these critics allege that divorce is a positive or enjoyable experience for anyone. To the contrary, divorce is recognized as emotionally traumatic and often financially devastating. But bad marriages are also intensely traumatic, often more traumatic than the process of discontinuing them. Barbara Ehrenreich, writing in Time magazine (April 8, 1996) reminds us that "just as there are bad marriages, there are [also] good divorces in which both parents maintain their financial and emotional responsibility for the kids." Indeed, the negative consequences of divorce are themselves routinely overstated. From Ehrenreich: "The alleged psyche-scarring effects of divorce have been grossly exaggerated." And from Katha Pollitt: "There is no study that shows that children do worse in divorce than they do in a really dysfunctional home." According to these critics, the covenant marriage movement errs in its assumption that divorce is always bad and that all marriages deserve to be kept together no matter the cost; the other side of the coin is that the law really doesn't do anything to make marriages better, just harder to terminate.

There is truth in these observations-just enough truth to make the conclusion dangerous. Yes, many marriages prove to be unsatisfactory or even destructive and deserve to be terminated, the sooner the better. One might ask why this is the case. Is it possible that many bad marriages take place at least in part because people rush into marital commitments without an adequate consideration of what they are getting themselves in for? And would it not therefore make sense to urge or require that couples obtain some degree of counseling or instruction before they tie the knot? Or to insist that counseling be sought when problems arise later? And would a law that did exactly that be addressing just symptoms of some bigger problem or the problem itself?

It is always seductive to assert that X is "just" a symptom of some larger or more profound problem Y. Divorce is a symptom and lousy marriages are the cause. By the same reasoning, drugs are also symptoms of larger problems, and so are homelessness and poverty and violence and just about every other problem that confronts us. This is only an indirect way of asserting a meaningless truth, namely, that everything is ultimately caused by something else. So what?

Nearly everyone concedes that divorce is, in the typical case, emotionally hurtful and often financially disastrous. No credible study shows otherwise and no party to the dispute over CM disagrees. Likewise, no one in their right mind would assert that all marriages should be held together at all costs, no matter what. We have already emphasized more than once that the law explicitly acknowledges that some marriages are destructive and require immediate termination; the law also provides the legal machinery by which to terminate them.

But enough evidence has now accumulated on the downside of divorce to force recognition that divorce, like marriage, is not something to be taken lightly or entered into without serious reflection and discussion. Through the premarital counseling provision, covenant marriage is meant to force couples to take their marriages more seriously; the post-marital counseling provision, the restricted grounds for fault divorces, and the extended waiting period for no-fault divorces are all meant to get couples to take their divorces more seriously as well. The symbolism of a "covenant marriage" is altogether too religious and traditional for the tastes of many, but it is hard to quarrel with the substance of what the law intends to accomplish.

One might also ask, if divorce is only a "symptom" of bad marriages, then what are bad marriages a symptom of? Family specialists know that there is no one factor, or even a relatively small set of factors, that can adequately account for the breakup of marriages. Many marriages in the contemporary era go bad for economic reasons; here it is worth emphasizing that the young people of today comprise the first generation in history that cannot simply assume they will end up better off economically than their parents. Young adults, especially minority adults in the inner cities, have lost a third of their earning capacity in the last decade; poverty rates in the 1980s and 1990s have been generally higher than anything witnessed in this country since the onset of the War on Poverty in 1964. Crime, drugs, violence and disease threaten families; inadequate schools threaten families; industrial relocation threatens families; the dismantling of the welfare state threatens families. As we have already said, the viability of marriage and family life is under assault from any number of large-scale forces, very few of which can be influenced by the legal terms under which couples choose to marry. And if state legislators believe that passing a covenant marriage law adequately addresses even a few of these large-scale forces, they are seriously deluded.

Covenant marriage reinforces traditional gender roles and is an effort to make (or keep) women subservient to men. Many people seem to object to covenant marriage more on symbolic than substantive grounds. The very concept of a covenant marriage, as Terry O'Neill has observed, is an "endorsement of the belief that marriage symbolically represents Christ's covenant with the church." For the contemporary secular humanist, any reference or even allusion to religion or religiosity is anathema, and CM certainly has its religious connotations. It is also not wrong to suggest that in Louisiana (and for that matter, everywhere else), covenant marriage is a creation of religious conservatives. and is motivated in most cases by deep desires to resurrect traditional family values, including the idea that men should be the heads of their households and women should be deferential and subservient towards them. Some therefore feel that covenant marriage is really little more than a misguided effort to put the force of law behind Biblical pronouncements about women's "proper role" in marriage.

But one must guard against confusing the reason why the covenant marriage law was passed with the effects it is likely to have, or mistaking the symbolism of the concept for its substance. Covenant marriage may well seem to be both "too religious" and "too chauvinistic," but we have read the Louisiana law front to back several times, and it contains nothing that would deny covenant marriages to atheists who wanted them or that would prevent a covenant couple from forging a completely egalitarian or otherwise "unconventional" relationship. Nothing about the law dictates how covenant couples must arrange their private affairs inside the framework of their marriages.

Walter Olson's comments about pre-covenant marital regimes bear quoting at some length: "After all, the modern [no-fault divorce] revolution simply replaced one prescribed-and- invariant marriage contract-one that made it relatively hard to ditch an uncooperative spouse absent proof of serious fault-with a different prescribed-and-invariant contract-one that made it hard to offer or obtain a binding commitment to stick it out in a marriage through better or worse. Some couples entering matrimony undoubtedly prefer the looser tie, but many others definitely do not, and our current [no-fault divorce] law deprives them of the freedom to strike bargains they'd want to enter in pursuit of genuine security."

As these comments should make clear, the practical effect of covenant marriage ultimately has nothing to do with religion or traditional male and female roles. It has everything to do with giving people more choices. In the present case, the choice being offered is between a standard marriage that is readily terminated through the applicable no-fault regime and a covenant marriage that is more difficult both to enter and to exit. CM says in practical effect that no one other than couples themselves can decide which form of marriage is best for them. Thus, the law begins to change marriage from a status to a free contract between adults. Those who would oppose giving people this choice just because they do not like the symbolism of covenant marriage would do well to heed Olson's concluding remark, "that the principle of free contract, powerful though it may be as a solvent, works even better as an adhesive."

As is perhaps obvious, a great deal that is presently being said and written about covenant marriage is misguided. But that certainly does not mean that there are no interesting issues or questions raised by the emergence and probable diffusion of covenant marriage regimes. Herewith, some of the more intriguing ones that we will be monitoring over the coming years:

What will be the effect of CM on the terms of public discourse about topics like marriage and divorce? The legislative intent of the law goes well beyond mandatory counseling and extended waiting periods; legislators clearly want to have an impact on how marriage, divorce, family and related concepts are thought about and publicly discussed. Does the law have any such effects? 

What kids of couples will choose covenant marriages?  Couples who enter covenant marriages (or who convert existing marriages to covenants) will no doubt differ in many ways from couples that make other choices. In what specific ways do they differ? And do these initial differences "explain" later differences in marriage outcomes? (Methodologists will recognize this at once as the "selection" problem.)

How does the covenant option affect prenuptial conversations and negotiations between the partners? We mentioned earlier the concern that CM would be used as "emotional blackmail" to induce possibly recalcitrant marriage partners into a more secure marriage "bargain" than they might otherwise be inclined to make. It is worth knowing the extent to which something like this happens. But it is also important to know if the need to choose between a covenant marriage and a standard marriage compels couples to discuss marriage and what each intends to get from it, the nature of the commitment each is making to the other, expectations about fidelity, monogamy, and children, and all the other things one would very much hope that couples about to get married would discuss. One of the explicit purposes of CM is to compel young couples to engage in exactly these conversations. Does it?

What do people know about covenant marriage and how do they learn about it? The small number of couples electing CM suggests that people are not being told about the option when they apply for a marriage license, even though the law says they are supposed to be. Likewise, results from opinion polling done during the summer of 1998, a year after passage, show that most adults in the state have yet to hear about it. On the other hand, CM in Louisiana is not yet two years old and as time passes, one anticipates the level of awareness to increase. But will It?

The big question is whether covenant marriages will prove to differ from standard marriages in their stability, duration, or overall health, net of the effects of selection factors. Do they produce fewer divorces? Happier marriages? More well adjusted children? Are the spouses in covenant marriage less likely to cheat on one another? Is there less physical, verbal and emotional abuse in covenant marriages than standard ones? Are family relations more functional? More democratic? Or do covenant marriages promote highly traditional patterns of familial interaction, where wives are subordinate to husbands and children are "seen but not heard?" What will become of the covenant in the out-years, when marriages start to fail and the adult partners are looking for a way out? Argumentation by enthusiasts and skeptics cannot substitute for valid evidence reliably gathered.

Finally, Alan Hawkins and other scholars at the Center for Studies of the Family at Brigham Young University have hypothesized that CM might eventually come to be seen as a new stage in the structural evolution of the American family. Hawkins' argument goes something like this: In times past, the "structure" of marriage was that people dated for a bit (or more than a bit), then got engaged, then got married and pretty much stayed married until death. More recently, cycles of divorce and remarriage have been superimposed onto the larger structure. And even more recently, widespread cohabitation has emerged as a form of semi-marriage or as a means of "testing the waters" before a firm legal commitment is made.

If the line of reasoning sketched above is correct, it is easy to see that the evolutionary stage beyond CM is marriage as an indissoluble union that can only be broken through the death of one of the partners (and maybe not even then). If couples can voluntarily forego their rights to a quick no-fault divorce, as they can in Louisiana and Arizona by opting for a covenant marriage, then what would stop them from surrendering their right to any divorce at all? Once the notion of a covenant marriage is firmly established, can we then be looking for state legislators to come up with an "indissoluble union" provision that couples can elect to put even sharper legal teeth into their wedding vows? Bet on it!

Right now, every day, thousands of couples all over the country vow to "love and honor" one another "until death do us part." The wedding vow itself is intended to stress the permanence of the commitment being made. Many may think, but none utter, "or until something better comes along," and yet that seems to have become the tacit understanding, the unspoken rider in every marriage contract under the no-fault divorce regime. But some people actually mean what they say during their wedding ceremony, fully intending their marital commitment to be permanent, and two states (with more soon to follow) have now given their citizens a legal mechanism to affirm that intention, publicly and legally. It will be interesting to see what effects, if any, this has on marriage and divorce in the coming years.  

Steven Nock is professor of sociology at the University of Virginia. Working with Wright and Sanchez, he is directing a five-year study of new marriages in Louisiana supported by the National Science Foundation. His most recent book is Marriage in Men's Lives.

James D. Wright is the Favrot Professor of Human Relations in the Department of Sociology at Tulane University 'A frequent contributor to Society, Wright served as associate editor for the magazine from 1988 to 1997. His latest book, Beside the Golden Door, was recently published

Laura Sanchez is an assistant professor of sociology at Tulane University. Her interests include feminist views on family demography and the gender division of labor. Her research examines the effects of the work/family nexus on marriage and divorce and couple perspectives on masculinity, and femininity in personal relationships.