Divorce
I
IT has long been evident to the dilettante observer of human affairs that the only morally comfortable polity to live under is a theocracy. Morally, in the strictest sense; not physically, and certainly not socially. Perhaps not even intellectually. But the moral ease of knowing that there is divine sanction for the law you have to keep must be very great. Genuine theocracies have never lasted very long, and I do not know that there is one anywhere on the planet now in real working order. Certainly even in countries where a church has been ‘established’ — a sort of compromise with the theocratic idea — there have been continual clashes between the civil and ecclesiastical law. In America we have had no theocracy since 1776; and I suppose that even Massachusetts Bay Colony was not one, technically, though it combined pretty consciously the theocratic regime of the Old Testament with that of John Calvin.
We still have, however, all over the world, vestiges of the theocratic conception. Every religion that is worth its salt has tried sooner or later to establish itself, if not by physical force, at least by legal suasion. Christianity itself has justified its violences by Christ’s statement that He came not to bring peace, but a sword. And after the sword was dropped, the Church did its best to gain its end by other means. In every Occidental country, people still find their liberties curtailed by laws that sprang from religion alone; by laws, that is, whose social warrant is theological. Even in the United States, where we have never, since we were a nation, had an established church, we live in a welter of religious tabus made law. For the religious tabu, overthrown by a laxer generation, reappears disguised as a prejudice; and many of our statutes are expressions of prejudice rather than statements of principle scientifically or socially arrived at. We have remaining with us, as individual citizens, some of the inconveniences of a theocratic past, though none — absolutely none — of the moral ease of theocracy.
The question of divorce is not simply a legal matter: it is a social question, about which every adult member of our modern community may have an opinion. I say ‘may have’; perhaps I should say, ‘may have if he can.’ None of our laws or statutes derives more directly from ecclesiastical influence than those concerning divorce; and about nothing else, really, are we in such a complete mess. South Carolina, I believe, grants no divorces at all; some states only on‘statutory grounds’; others, one seems to make out, for almost anything. In Hawaii — one of our territories — leprosy is sufficient ground for divorce with the privilege of remarrying. There used to be states that granted divorce for ‘incompatibility of temper’ — certainly as reasonable a ground as any. I do not pretend to know the precise variations of the divorce laws: I know only, like everyone else, that they do vary — amusingly, perplexingly, or shockingly, according to your point of view. I know — like everyone else — that people are always agitating for uniform divorce laws. I know that all sorts of groups feel that we exist, legally, in an absurd and disgusting confusion about both divorce and marriage. It is so big and perplexing a question that even the people who advocate this or that adjustment do not really pretend that their suggestions will solve the problem. Mitigation is all that anyone seems to hope for. He would be hardy indeed who should venture to propose a solution.
I fancy it is still true that in most sections of America the fact that a man or a woman has been divorced — especially if he or she has remarried — is something to be set down, until further information comes in, on the debit side of the account. In some American worlds, people have achieved a state of mind in which one’s divorce is of no more moral significance than the color of one’s eyes; but these worlds are still few, and, in comparison, small. The prejudice is lessening all the time; and I wonder if there is left any group of individuals, large enough to count as a social group, which does not know and receive and like certain divorced and remarried people. I fancy not. Yet it can still be said, I think, that divorce, as such, is looked at askance. Most people, if pinned down, would probably say that in their opinion certain circumstances justified divorce absolutely, but that promiscuous and light-minded divorcing shocked them. A good many people, too (apart from Roman Catholics, I mean), draw a definite distinction between a divorce which is a mere legal separation and a divorce with remarriage.
In other words, there is still a deep conflict between the civil law and the ecclesiastical — the latter of which remains as a prejudice in the minds of many people for whom it has ceased to have the force of a tabu. Most Americans had thrown over the Church — whether Catholic or Anglican — before they ever landed on these shores. There was Catholic Maryland, and there was Anglican Virginia; but the main stream of American civilization, as it happens, has been Protestant and Nonconformist. As far as I know, the Protestant sects have never elevated marriage into a sacrament, since they have acknowledged, in the theological sense, no sacraments at all. The position of Rome has been, for many centuries, uncompromising, of course: marriage is a sacrament, and does not admit of divorce on any grounds. The Anglican position is wavering; but the stricter Anglicans admit divorce with remarriage no more than Rome. Episcopalians who wish to divorce and remarry must do it under the protection of the civil law and the dissenting clergy.
Logically speaking, if you consider marriage not in the light of a sacrament but in the light of a civil contract, you must permit remarriage, as you must permit an individual who has dissolved, legally, one partnership, to form another if that be to his interest. If, on the other hand, anything of the sacramental idea still inheres in your view of marriage, you cannot quite stomach remarriage during the lifetime of the divorced wife or husband. The average dissenting Protestant, though he does not believe, and never did believe, that marriage is a sacrament, still has echoes in his mind of ‘whom God hath joined together, let no man put asunder.’ The Protestant sects may have no theological principles against divorce, — the mere fact of our divorce laws shows that they have not had, — but even Baptists, Methodists, and Presbyterians have not escaped those early centuries of Church history, when the sects lay silent and unperfected in the womb of Rome. The Puritan threw over the sacramental idea, lock, stock, and barrel; he threw over the celibacy of the clergy; he threw over the indissolubilily of marriage. But he could not throw over that vaguer and more powerful thing, the Christian attitude to sex. Nor did Saint Paul — whom he greatly reverenced — help him to do so.
We shall hardly get at the heart of this conflict about divorce without realizing that the prejudice against divorce derives from asceticism; and that Rome, which is as usual logical and uncompromising, practically admits it. I am no theologian; but I believe it can hardly be questioned that on the subject of sex the Church took its attitude early and never abandoned it. To quote Milton: ‘It was for many ages that marriage lay in disgrace with most of the ancient doctors, as a work of the flesh, almost a defilement, wholly denied to priests, and the second time dissuaded to all, as he that reads Tertullian or Jerome may see at large.’ In the eyes of those who shaped dogmas and policies, celibacy was holier and more acceptable to God than marriage. Rome has never pretended anything else; and all Catholic dealing with marriage is based on the ascetic ideal. The Church admits with Saint Paul, ‘It is better to marry than to burn’; but it never allows the married to forget that they fall short in sanctity of the deliberately and successfully celibate. It is the spiritually inferior who take unto themselves wives and husbands.
I hazard the statement — and I have heard a good deal of unvarnished preaching on the subject of marriage from Catholic pulpits — that the reason for the Church’s prohibition of divorce, like its prohibition of anything resembling birth-control, is to be found, if you go relentlessly back, to asceticism pure and simple. To put it crudely, if you are going to marry and live after the flesh, the Church will, if it can, sec to it that you escape none of the pena lties of living after the flesh. So far as it can, the Church minimizes, for the married, whatever may be the pleasures of marriage. It sees to it that there shall be a minimum of passion and a maximum of sacrifice; because marriage itself is only a concession to the weakness of the race, the universal appetites that religion itself cannot deny.
The Church will permit you to marry, but it will make you pay. I am saying this in no hostility to the Church or to the Fathers. What else, indeed, was a convincedly ascetic Church to do?
Now the Protestant might carry his notions of liberty to the point of insisting on the right to divorce; even (like Milton) on the positive right to remarry; but he could not escape the thousand years of religious history that lay directly behind him. The prejudice against divorce, like the prejudice against dissemination of birth-control information, is religious in origin. And since we have reached a day in which people do not like the notion of laws that spring from religious prejudice, we find a curious tendency in the public mind to discover a social warrant for such laws as its prejudices make it desire to keep on the stat ute books.
We have always prided ourselves particularly on American noninterference with religious belief; and rightly. The civil law has no more business to embody Catholic belief about divorce than it has to embody Jewish or Mohammedan belief. But that it should adumbrate historic Christian prejudices is natural. A Protestant country like our own would be expected to make legal provision for divorce. But a Christian population would not be expected to accustom itself quickly to the notion of free and promiscuous divorce. The mere fact that for most people marriage involves a religious ceremony and solemn vows in the presence of witnesses shows that even among Protestants marriage has always been looked upon as something more than a civil contract.
II
It was necessary to show the genesis of popular prejudice against divorce in order to get at the reasons why that popular prejudice not only is weakening but also is ceasing to be effective. This is one contemporary phenomenon that cannot be attributed to the influx of foreign population; for most of our immigrants bring with them either Catholic or Jewish prejudices, if not definite beliefs. It is not the guests of Ellis Island who are divorcing all over the place. It is either the Americans themselves, or the really Americanized. You can blame the inferior stocks that have deluged our country for much corruption of the body politic and the social system; but you cannot accuse them of giving us the divorce habit.
If you leave to one side special religious convictions, which cannot be embodied in law in any country which practises religious freedom, you have left two aspects under which any citizen may legitimately consider the divorce question: scientific and social. Let us leave the scientific side of it to the biologists and anthropologists. It is the social and personal aspect of the matter that more directly and legitimately concerns us.
Only, I think, if you are still living with the ascetic ideal, will the notion of divorce in itself shock you. Otherwise you will echo John Milton. Is marriage a thing to be apologetic about; to be penalized; to be confessed as a weakness? Or is the Occidental world outgrowing the Christian attitude to sex? You have got to make up your mind about that before you can make up your mind about divorce. In that pursuit of happiness to which the Declaration of Independence tells us we have a right, does the pursuit of a happy and satisfactory conjugal relation have a place? If it has not, why do we not tighten up the divorce laws and abolish the several Alsatias? If it has, why not make the divorce laws decent — at present they are not, in most states — and make it possible for two people who are unhappy to part legally and remarry more happily without dragging either one through the mire of scandal? If it has, why penalize ‘collusion’; in other words, why do your best to prevent people’s divorcing when both of them want to? The cry against divorce on the score that in most divorces one person is sacrificed becomes absurd enough when you realize that only on the basis of one person’s wanting it and the other person’s not wanting it is a divorce obtainable at all.
The only psychological — I do not say religious — excuse for making divorce impossible, or even difficult, is a cynicism which believes that almost any two people who have once chosen to come together will be as happy in that as in any other combination. I find, I may say, that cynicism fairly prevalent among my own acquaintance. There is a tendency among civilized people, who live ‘above the law,’ to underrate the sensitiveness of the average man, whose weaknesses laws are designed to control. Did you ever know anyone who admitted that laws existed to control him? Moral snobbishness abounds among thinking people. Laws, that is, are framed to take care of the potentially criminal classes. The argument of intelligent people against easier and more decent divorce is usually based on a complete contempt for the romantic or spiritual quality of the average marriage. Save for the more outstanding cases of infidelity, cruelty, or neglect, they consider that those two people might as well continue to be yoked together because they would do no better yoked otherwise.
Then they play, as their trump card, ‘duty to the children.’ If it is humanly possible, two people who have children should remain together for the children’s sake.
In the vast number of cases, married people who are not happy together, but who have children, will stay together, out of sheer economic necessity. In these days, it is only a rich man who can afford separate establishments; and many a man must stick to an unloved wife because he cannot afford to give her the alimony that the courts would certainly allow her. It is cheaper to bring children up under the same roof with both parents than to make any sort of division whatever. The economic difficulty may, I think, be trusted to take care of the great majority of cases.
When the children are used as an argument, however, it is not on economic, but on social or sentimental, grounds. And there, I believe, the pleaders are wrong.
The courts can be trusted to see to it that, in any given divorce, the children are considered. It is usually the ‘innocent’ party to the divorce who is granted the custody of the children. Usually it is the father, of course, who is the support of the family. There are plenty of exceptions, but that may be taken as the rule. If he gets the divorce, he goes on supporting his children at home. If the mother gets the divorce, the father is sure to be mulcted of as much money as possible to enable the mother to bring them up.
This is not the place to discuss the evils and disgraces of alimony. Some provision for alimony must be made in the laws, or dangerous impunities would be created. Only an enlightened and educated public opinion, which shall react on the judges of the land, can ever give assurance that alimony should be ordered with any degree of decency and justice.
How any self-respecting woman, whose husband no longer desires her presence in his household and who is no longer rendering him any of the services in payment of which the wife is supported by the husband, can take alimony, unless she is physically incapacitated from earning her bread, one does not see, any more than one ‘sees’ the average breach-of-promise suit. Or how, if she takes it on the excuse of providing for their children, she can reconcile it with her conscience to nurture those children in hostility to the parent who is paying for them. It would seem that in many cases — not in all — custody of the children should be awarded to the parent who supports them. But, as I say, only an enlightened public opinion can take care of the alimony question.
As for the ‘duty to the children’ as a sentimental argument against divorce, it is probably less to the interest of real sentiment than most arguments. We all remember the pathetic rôle of Maisie in What Maise Knew, passing shuttlecock fashion from one vituperative parent to the other. ' she was a ready vessel for bitterness; a deep little porcelain cup in which biting acids could be mixed.’ A child who divides its time between divorced parents who hate each other is in sorry case. But that it is in less sorry case than the child who lives with two undivorced parents who hate each other, I have come, after many years, to believe absolutely. This is an important matter, for nowadays the welfare of children is the one point on which all reformers agree. Since the child is made the most frequent argument against divorce, it is well to consider the validity of that argument.
They make, usually, one of two statements, if not both of them: first, that any child needs both a father and a mother to bring it up properly; and that it is disillusioning to the child — an abnormal sit uation which is morally bad for it — to grow up with its parents separated. The first consideration is practical; and there is no doubt that a child gets its best preparation for life if the father and mother can coöperate harmoniously in the task. A child should have, ideally speaking, the formative influence both of the adult man and the adult woman. No question about it. Yet children are successfully brought up, all the time, by one parent, when they have been deprived by death of the other. The burden is heavier on the remaining parent than on the child itself. If, that is, parents are right-minded and faithful. It is safe to say, I think, that the value of coöperation depends largely on its being harmonious; and why two people who long to get rid of each other should be harmonious about the bringing-up of their children, I do not see.
As for its being disillusioning to the child to be brought up by one parent, — or even by both parents alternately, as occasionally happens, — knowing that the other is living, somewhere else, it would seem to be self-evident that for a child to witness constant friction is more disillusioning than for it to witness occasional friction or to hear about the friction second-hand. I can, indeed, imagine cases where two married people agree to disagree, keeping up a perfect civility in formal relations, arranging their lives so that they seldom see each other and then only in company. But those cases presuppose great wealth, spacious lives, a multiplicity of social interests — a scale of living, in other words, far above the average, never to be considered anything but exceptional. Most homes are terribly intimate places. A child is always unfortunate whose parents do not get on with each other, because its views of the relation of marriage are bound to be queer. One of the most important things for any child to acquire is a sense of the normality and beauty of the marriage relation. But it will never be acquired by a child living in a home where there is no love between the parents. It may be said that it will not be learned by any child who lives with one parent who has repudiated the other. Perhaps not often; but at least it has a better chance of respecting one parent than if it lives under conditions where it is difficult to respect either.
The point is that nothing can be more unlucky for a child than to have the spectacle of the unfortunate marriage daily thrust upon it.
The sentimental argument — not the practical one, which will take care of itself — of the children is probably based on false premises. Ought one then to say: let all people divorce freely who for any reason wish to? However much one may romantically incline to answer ‘yes,’it should be kept in mind that to make divorce entirely easy will lead to many divorces in which there is not much point; perhaps to so many divorces that we shall be, socially, in a very inchoate condition.
The fact that you cannot, in most states, get a divorce without mud-slinging is a disgraceful fact. Yet if we have ‘ divorce on demand,’ are we not going to have half the married folk in the country divorcing in some moment of impatience or weariness? In such a case, would not marriage be robbed of all its dignity? There can be no law of any sort that will cover all cases properly, that will not work hardship to individuals. And just as the alimony question can be decently resolved only by educating public opinion, so can the divorce question be only so resolved.
In the superstate, laws would be discreet and delicate, because the citizens themselves would be discreet and delicate. But as it is, laws must take care of the moral thug. Alimony exists to cover the case of the man who would, if alimony were not granted or grantable, callously marry, and forsake, one woman — and one set of children, probably — after the other. But the mere fact that alimony is there leads a lot of women to take indecent advantage of it in cases that are quite other. Many, if not most, states provide divorces on the proof of horrors perpetrated. Therefore a lot of people have to commit perjury every year — preferring perjury to domestic unhappiness. It is, in all conscience, a mess. Many lawyers will not touch divorce cases at all, because the subject is so unsavory.
Very few things are clear, in this matter. Almost the only thing that would seem to be clear is that, so long as marriage is easy, divorce must be easy — ought, probably, to be easier than it is. Unless you tighten up the marriage requirements, you cannot tighten up divorce laws. If you make it possible to marry at sight, you ought to make it possible to divorce on demand. The two freedoms should march with each other. To take a crude but classic case: as long as the college undergraduate can be cozened, while drunk for a few hours, into marriage with a woman of the streets, you must give him the means to get rid of her after he is sober.
If it were harder than it is to get married, there would be real point in making it harder to divorce. The marriage laws need attention along with the divorce laws.
Certainly we should get rid of the ‘collusion’ superstition. The one case, it would seem, when divorce should be granted and no questions asked is the case when both people want it equally. As it is — well, we all know how it is. At present, if a civilized couple wishes to divorce, either one or the other must do something that is extremely distasteful and morally reprehensible; or the wife has to establish residence in some distant Western state and sue the husband for desertion. In other words, to take advantage of one law you are forced to break another. That is not a very logical situation. Whatever else is done, it ought to be made possible for two decent citizens who are really unhappy together to give due notice of that fact to the proper authorities and be freed from each other — taking whatever precautions are necessary to prove it a bona-fide and deliberate decision on the part of both. Make them appear and state their wishes, together and severally, and more than once, with a due interval to allow for change of heart; take whatever precautions you please, but make it possible and make it decent. Do not impose on them the crime of perjury and the expense of far travel. Though any law, as I said, is going to work injustice to some individuals, such a legal provision as that would be less unjust than most. The only plea against it is the plea that sometimes a man or a woman would be induced by the other partner to divorce when he or she did not really want to. That, as a plea, is not worth much; for the attitude of the person who wishes to hold another person bound against his or her will is not a respectable attitude, morally speaking; and people who would refuse divorce to a partner who desires it are, generally speaking, beneath contempt.
I wonder if part of our trouble does not come from the very fact that religious marriages are far more common than civil marriages. As long as it is socially more correct to be married in church and according to the prayerbook, a large proportion of marriages will be founded on a lie. It is quite true that, with our Anglo-Saxon ideal of romantic marriage, we choose our mates — theoretically at least — for love. Two people who are in love with each other positively enjoy laying bonds on themselves, and regarding their relation sub specie æternitatis. But there can be no question that large numbers of the young folk who endure the religious ceremony of marriage have no theoretical objection to divorce: in other words, that those tremendous vows are welcome to them — if they are welcome — only because they think at the moment that their own love will never die; not because they believe that there is any authority within the Church with the right to keep people together who should wish to part.
It would clear up some of the mess if marriage were socially recognized as a mere cont ract under the civil law, except for those people who positively desire to abide by religious requirements. The law itself, of course, takes no account of anything but the law — and quite rightly.
III
So far, I may well seem to have been arguing on the side of free and easy divorce; and I confess that, while the divorce laws are what they are in most, or many, states, I am inclined to be grateful for the states that grant divorce most easily, because that means granting it, in some respects, most decently. The best you can hope for any legal enactment is that it should work the least possible harm. Any law, as we have said, is going to work injustice in this or that individual case. It is a nice question whether easier divorce laws than we have would, or would not, work more harm than the laws existing. What I do honestly believe is that, in a country whose constitution was originally based on religious freedom, a Christian country, moreover, that was prevailingly Protestant in temper, you must make divorce both available and decent. That it is difficult for the average man or woman to obtain a divorce without either scandal or perjury is all wrong; and is a fact due largely to religious tabus, outdated and faded, yet still potent as social prejudices. Less than the English divorce laws, but still very really, our laws are a kind of hang-over from the ecclesiastical teaching about marriage. Hear John Milton once more: ‘He, therefore, who, lacking of his due in the most native and humane end of marriage, thinks it better to part than to live sadly and injuriously to that cheerful covenant (for not to be beloved, and yet retained, is the greatest injury to a gentle spirit) he, I say, who therefore seeks to part, is one who highly honours the married life and would not stain it; and the reasons which now move him to divorce are equal to the best of those that could first warrant him to marry; for as was plainly shewn, both the hate which now diverts him, and the loneliness which leads him still powerfully to seek a fit help, hath not the least grain of a sin in it, if he be worthy to understand himself.’
It is not an easy question, and no solution recommends itself as completely unobjectionable. Uniform divorce laws are perhaps the worst of remedies, since laws are bound to work injustice; and in a matter like this, where people’s convictions differ so widely, it is admittedly impossible not to bear hardly on large groups of men and women. There is no perfect code of divorce laws — not in being, or yet concealed in the clever brain of man. The most that you can attempt to do is to educate the race to a point — in this, as in other matters — where a reasonable law will cover the majority of cases, because the people at large will have reached a certain level of reason and civilization. We are very far from that level at present, and must still be experimental.
Roughly speaking, if you make divorce too easy, you run the risk of achieving something like sexual promiscuity — a result greatly to be deplored. This, in spite of the economic handicaps which really, at present, automatically bind a lot of people who might like to be free. The very rich can always manage.
On the other hand, if you make divorce too difficult, you work infinite hardship to vast numbers of men and women, and you are in danger of creating a generation of children who are profoundly cynical about the most romantic of human institutions. Either way you will do some harm and some good.
The utmost one can suggest at present is a little more honesty, since honesty is all to the good. If we wish to make divorce difficult, we might, find some better obstacle to put in the path of the unwilling partners than the necessity of committing adultery, or behaving with outrageous cruelty, or lying themselves black in the face. If we must experiment, we had better let the separate states experiment, rather than urge the federal government to do so.
We are still living, in many respects, mediævally; and our motions toward modern ideas must needs complicate the situation before they succeed in clearing it. We still live under laws that make suicide a crime: if a man attempts to kill himself, he can be arrested for the attempt. We call it a crime because the Church calls it a sin. Another instance, that is, of the religious tabu still coloring the civil law. Eventually we shall get rid of these cases, and not confound, technically, crimes with sins. Concerning marriage, we are still living, to some extent, mediævally. The fact that practically no jury will convict a man who shoots his wife’s lover shows that feminism still has some progress to make in the popular mind.
The divorce question was easier when the Church was the State. But eventually every trace of ecelcsiasticism, like every trace of mediævalism, will have to be expunged from the civil law.
And even with marriage looked upon in the light of a civil contract only, it is not going to be so simple. For if marriage is the most romantic, it is also the most complicated of human institutions. The people who take it with moral lightness, using the laws as much to their own advantage as they can, are not so much to be pitied, for there are usually ways out, humanly speaking, for them. The people who believe marriage a sacrament in the religious sense do not come into the question at all; for they have simply chosen to abide by a law which is above the law. It is your and my affair that a man should be a good citizen; but that, over and above that, he should be a good Catholic is his own affair entirely — a matter between himself and God. Simply, he has two laws to keep instead of one. We have only to see to it that he does not insist on anyone’s keeping his second law who does not believe in it as he does.
The people who are most hard hit by the present chaotic and anachronistic situation are the people to whom marriage is indeed a solemn matter, not to be entered into lightly and unadvisedly, but who are none the less capable of making a mistake, and who have no religious convictions against divorce in itself. Taking the country through, that class contributes the majority of sober-minded and intelligent citizens. Many of them, I fancy, feel marriage to be a sacrament, though in no ecclesiastical sense; in other words, if their experience of the marriage relation has seemed to them to have that mystical quality. If you do not feel marriage to be a sacrament, they would say, then it is not. Like Nick in The Glimpses of the Moon, they consider that ‘the people who don’t feel it are n’t really married — and they ‘d better separate; much better.’ Also, those people would say that you cannot possibly tell whether it is a sacrament or not until you have tried it out.
That is not far from the Church’s teaching about the sacraments. Only, of course, where the Church insists that any marriage, if duly performed according to its rites, is a sacrament, these romantic unbelievers hold that only that marriage is a sacrament which has proved itself to be one. They quite admit that, if their relation had turned out differently, it would not have been one. The Church, according to them, has nothing to do with it. But when two people feel that about their marriage, they are not going to divorce and remarry lightly; in fact, they are going to put up with a good deal of later disillusion rather than do so. If the essential quality goes out of the relation, they may indeed part; but they are not much more likely to remarry than if they held ecclesiastical views. They may not use the word sacrament at all; yet if they have once had that feeling, that sense, concerning their own marriage, they are going to be held back in all sorts of invisible ways from breaking that relation to contract another.
These reactions and attitudes defy analysis; yet any civilized person, however agnostic, will know what I mean. There is, after all, something rather tremendous about marriage, which only the incurably frivolous, or incurably loose, can fail to feel. If people who do feel it wish to divorce, they should certainly be permitted to: for you may be sure that they do not ask for freedom unadvisedly. They are simply in the position described by John Milton.
Obviously we cannot have divorce on demand without permitting the loose and frivolous to go deplorably far. Not, at least, as long as you make marriage itself so fatally easy a contract to enter into. Yet you cannot make divorce both indecent and overdifficult without oppressing the more important people intolerably much. The impossibility of protecting society from the people who wish to behave like the beasts of the field, and also making life possible for the people who are the moral backbone of the community, by the same laws, is the best argument I know of against a uniform divorce law. Certain states are often spoken of as Alsatias for the immoral; but they may be, as well, sanctuaries for the moral. Both things have to be taken into consideration.
Certainly before we can resolve this matter we have got to face the fact that the home is not sacred unless the people who live in it have some notion of what constitutes sanctity; and that, while you can perhaps mate the average or sub-average man and woman by authority as animals are mated in zoos, you cannot mate the super-average that way.
Whether we are right or not, we ‘Anglo-Saxons’ have derived and developed a romantic conception of marriage. If you abolish freedom, you destroy it. Even the Latin conception of the institution of marriage is not very sympathetic to us. Most people nmy not find romance in their marriages, but we still prefer to keep that ideal.
As a race, we really loathe the marriage of convenience; nor are we perfectly sure that it turns out a better type than our own. If romance is not bound up in the wife or the husband, it will be bound up in the mistress or the lover. But it never can be bound up in the wife or the husband unless there is freedom to choose — or even to change one’s choice. How much of an asset to society is romance? If it is none, then tighten up the divorce laws and keep any two people together forever who have once come together. If it is an asset, on the other hand, give marriage a chance to be romantic: tighten up the marriage laws by way of precaution, but give people a loophole to get out — even to make the great experiment again.
It is only by making us all idealistic creatures that you can give us idealistic laws, of course. But what we can do, even now, is to get rid, bit by bit, of hypocritical discrepancies. We can say that the civil law shall cease to mirror religious prejudice and shall be based, as far as possible, on human nature and social good, as we honestly see them. We shall have to guard society against conscienceless men and women, in this as in other matters; but we can educate ourselves to distinguish between the liberty to which no citizen has a right and the liberty which is the very breath of a reasonable being. If we have got to err, at least, let us err slowly and partially. Let us not, for example, take the marriage code out of the prayerbook only to put it into the Federal Constitution. Most people, it is well to remember, have to be pretty miserable before they upset their lives with divorces.
It is not the fashion in this reforming day to care much about people’s happiness; but you have to remember that the perfect marriage is perhaps more worth fighting for than the imperfect marriage is worth protecting. The only way you can train youth to respect marriage as an institution is pragmatically — by giving it the spectacle of marriages that are, so far as is humanly possible, without flaw. And I fancy the way to begin may be to make marriage more difficult and divorce more decent.