Family inviolability was never absolute, but the basic principle governed what traditionalists themselves insist is the unique and foremost purpose of marriage and family: raising children. The private family creates a legal bond between parent and child that allows parents (within reasonable limits) to raise their children according to their own principles, free from government interference. “Whatever else it may accomplish, marriage acknowledges and secures the relation between a child and a particular set of parents,” writes Susan Shell. “The right to one’s own children . . . is perhaps the most basic individual right—so basic we hardly think of it.”95This right has long been recognized as fundamental by the Supreme Court and other federal courts, as well as by centuries of Common Law practice. Numerous decisions have reaffirmed that parenthood is an “essential” right, “far more precious than property rights,” that “undeniably warrants deference, and, absent a powerful countervailing interest, protection.”96 “The liberty interest and the integrity of the family encompass an interest in retaining custody of one’s children,” according to one decision.97 Parental rights have been characterized by the courts as “sacred” and “inherent, natural right[s], for the protection of which . . . our government is formed.”98For this reason, the married family, and particularly parenthood, is the guarantor of freedom for the entire society—a conservative cliché whose basis is seldom explored thoroughly. It creates a zone of privacy that is off-limits to the state and creates an authority that is the only exception to the government’s monopoly on coercive force.
Parenthood after all is politically unique. It is the one relationship, other than the state, where some may legally exercise coercive authority over others, which is why governments often try to undermine it and why state officials—social workers, family court judges, divorce lawyers, forensic psychotherapists, public school administrators—seek to prohibit or curtail activities by which parents instruct, protect, and provide for their own children without dependence on the state. Without parental authority, government’s reach is total.99
This principle has become largely a fiction, and the cutting edge is divorce. Shell summarizes principles that, until recently, were so universal as to be unstated among free societies: “No known society treats the question of who may properly call a child his or her own as simply . . . a matter to be decided entirely politically.”
No known government, however brutal or tyrannical, has ever denied . . . the fundamental claim of parents to their children. . . . A government that distributed children randomly . . . could not be other than tyrannical. . . . A government that paid no regard to the claims of biological parenthood would be unacceptable to all but the most fanatical of egalitarian or communitarian zealots.100
As a statement of society’s moral consensus, Shell’s points are unexceptionable. Yet they also provide an unintended commentary on the ignorance that pervades today’s debates. For divorce law in the Western democracies has rendered these statements both prescient as principles and factually false. What she regards as a dystopian nightmare into which “no known government” has ever ventured has today become precisely the routine practice of governments throughout the Western democracies. It is having precisely the consequences she predicts.
Shell observes the obligatory gender neutrality, but her principles concerning marriage pertain to one parent far more than the other. The reasons for this go to the heart of current controversies over marriage. They also pinpoint and explain the ineffectiveness and futility of conservative campaigns on marriage, and why their failure to understand and confront divorce is fatal to any pretense about saving marriage. Indeed, this explains why, when it comes to family decline, conservative armchair moralists are probably doing more harm than good.
For all their eloquence over the virtues and benefits of marriage, conservative advocates have singularly failed to elucidate why the institution exists.101 Their main argument, usually directed at advocates for same-sex marriage, is that the purpose of marriage is procreation.102 But millions of single mothers attest that procreation is perfectly possible without marriage. This fallacious platitude is easily refuted by the homosexualists, who point out that fruitlessness of many heterosexual marriages.
The purpose of marriage is not procreation but fatherhood: marriage allows children to have fathers.103 Marriage turns a man from a sperm donor into a parent and thus creates paternal authority, allowing a man to exercise the authority over children that otherwise would be exercised by the mother alone. Feminists understand this when they renounce marriage as an institution of “patriarchy” and promote single motherhood and divorce as positive goods for their own sake.104 Instead of recognizing this truth, conservative sentimentalists labor the cliché that marriage exists to civilize men and control their promiscuity.105 If so, that is part of a larger function: to protect the father-child bond and with it the intact family. This point, potentially the strongest in their case, is overlooked by traditionalists who argue that marriage under-girds civilization. For it is the presence of the father that creates both the intact family and, by the same measure, the civil institution itself. Thomas Hobbes attributed to married fatherhood a central role in the process of moving from chaos to civilization. In nature, Hobbes argued, “the dominion is in the mother”: “For in the condition of mere nature, where there are no matrimonial laws, it cannot be known who is the father, unless it be declared by the mother. And therefore the right of dominion over the child dependeth on her will and is consequently hers.”106 Only in civilized society, where “matrimonial laws” do operate, is authority over children shared with the father. It fact, for all the ink spilled over delineating the proper role of the state in marriage, the role of tax incentives, and so forth, it is probably fair to say that the only truly essential role of the state in marriage (and this shows why it does have an essential role, pace some libertarian advocates for complete privatization) is to guarantee the rights and authority of the parents, and especially the father.
Our legal system has long insisted that marriage, not sperm, designates the father. The legal standard was Lord Mansfield’s Rule, stipulating that a child born within wedlock is presumed to be that of the husband, because it enabled a marriage to survive the wife’s adultery.107 (Earlier ages had perhaps a more balanced assessment of the female and male tendencies toward promiscuity.)
The role of marriage in creating paternity is also seen in its absence. Today, the weakening of marriage produces fatherless, not usually motherless, homes. (Motherlessness often follows, but fatherlessness begins the process.) As out-of-wedlock births explode, governments have developed elaborate bureaucratic substitutes for marriage in their efforts to “establish paternity” for purposes of collecting child support and (it is claimed, usually disingenuously) re-connecting fathers with their children.
This helps us understand why the divorce revolution is much more subversive of the social order than a matter of excessive individualism. Here as elsewhere, a provision rationalized in the name of greater freedom is in reality a highly authoritarian attack on an institution that provides for freedom, an attack that permits sexual ideologues and gov ernment functionaries to rationalize the most intrusive and repressive government machinery ever erected in the English-speaking democracies.
“No-fault” divorce was a deception from the start. What lawmakers and the public were told would permit divorce by mutual consent in fact allowed unilateral and involuntary divorce: divorce that was not only without the consent or over the objections of an innocent spouse, but that forced the innocent spouse to bear the burden of the costs and consequences. In retrospect, it was nothing less than the boldest social and legal experiment ever undertaken in the Western democracies: the end of marriage as a legally enforceable contract, or what Maggie Gallagher called the “abolition of marriage.”108 Today it is not possible to form a binding agreement to create a family. Regardless of the terms by which it is created, government officials can and will, at the sole request of one spouse, automatically dissolve a marriage over the objection of the other. Then follows the inescapable authoritarian logic that no one will acknowledge or confront: government functionaries will then assume total control over the entire household—including the children and all property—and distribute them as they choose, to whom they choose.
Under no-fault, the spouse that divorces without recognized grounds or breaks the marriage contract through adultery or desertion incurs no liability for the costs or consequences. “In all other areas of contract law those who break a contract are expected to compensate their partner or partners,” writes Robert Whelan, “but under a system of ‘no fault’ divorce, this essential element of contract law is abrogated.”109 As critics pointed out, no sound judicial system can possibly operate on such a principle, because it undermines the very principle of justice itself. “There is fault on both sides in every human relationship,” Fred Hanson acknowledged when the new divorce laws were drafted. “The faults, however, are far from equal. No secular society can be operated on the theory that all faults are equal.” Hanson was the dissenting member of the National Conference of Commissioners of Uniform State Laws, which presented “no-fault” laws to the states. “To do justice between parties without regard to fault is an impossibility,” he warned. “I wonder what’s to become of the maxim that no man shall profit by his own wrong—or woman either, for that matter.”110 Today we have the answer to that question: when courts stop dispensing justice, they start dispensing injustice.
Few stopped to consider the implications of laws that shifted the dissolution of private households from a voluntary to an involuntary process. Unilateral divorce inescapably involves government agents forcibly removing legally innocent people from their homes, seizing their property, and separating them from their children. It inherently denies not only the inviolability of marriage but the very existence of a private sphere of life.
The implications were not debated at the time and have never been debated in the decades it has taken for the logic to work itself out to its nightmare conclusions. The result gave government officials—armed with no evidence of any legal wrongdoing and nothing more than a piece of paper and a spouse with a private grievance—the power to summarily force legally innocent people out of their homes, seize all their property, assume permanent and absolute control over their children, permanently separate them from their children, and—if they fail or refuse to cooperate in any way—to incarcerate them indefinitely without charge or trial. Through literally “no fault” of their own, legally innocent citizens found themselves turned into outlaws in ways they were powerless to avoid. No-fault divorce allowed the modern state to achieve its most coveted ambition: to control the private lives of its citizens.
Divorce today is very unlikely to be a mutual decision. It is usually a power grab by one parent, assisted by lawyers, judges, and other officials. By extending the reach of the state over the children and the forcibly divorced parent, unilateral divorce has turned children into weapons of not only parental but governmental power.
“No-fault” divorce introduced radical new legal concepts—including, ironically, unproven guilt. “According to therapeutic precepts, the fault for marital breakup must be shared, even when one spouse unilaterally seeks a divorce,” observes Whitehead. “Many husbands and wives who did not seek or want divorce [and who had committed no legally recognized infraction] were stunned to learn . . . that they were equally ‘at fault’ in the dissolution of their marriages.”111 So the “fault” that was ostensibly thrown out the front door of divorce proceedings re-entered through the back, but with no precise definition. The judiciary expanded its traditional role of punishing crime or redressing tort to punishing personal faults and private differences: suddenly, one could be summoned to court without having committed any legal infraction; the verdict was pre-determined without any evidence being examined; and one could be found culpable for things that were not illegal. “No other court process is so devoid of recourse for a defendant,” writes Judy Parejko. “When one spouse files for divorce, his/her spouse is automatically found ‘guilty’ of irreconcilable differences and is not allowed a defense.”112Though marriage ostensibly falls under civil law, the new logic quickly extended matters into the criminal realm. What Parejko calls the “automatic outcome” effectively became a presumption of guilt against the “defendant.” Yet the due process protections of criminal proceedings do not apply in family courts, where formal criminal charges seldom arise. So involuntary litigants can now be criminalized and incarcerated without any action on their part and in ways they are powerless to avoid. In some jurisdictions, the “defendant” in a divorce case is the only party in the courtroom without legal immunity.113No-fault divorce does much more than allow families to self-destruct. It permits the state in the person of a single judge to assume jurisdiction over the private lives of citizens who are minding their own business and turn otherwise lawful private behavior into punishable offenses. Previously, a citizen could be incarcerated only following conviction by a jury for willfully violating a specific statute, passed with citizen input and after deliberation by elected legislators, that applied equally to all. Suddenly, a citizen could be arrested and jailed without trial for failing to live in conformity with an order, formulated in a matter of minutes from limited information by an unelected judge, that applied to no one but himself, and whose provisions might well be beyond his ability to obey.114 In effect, a personalized criminal code is legislated ad hoc around each divorced spouse, subjecting him or her to arrest for doing what anyone else may lawfully do.
Unilateral divorce thus places the family in a legal-political status precisely the opposite of the original purpose of marriage. Far from preserving a private sphere of life immune from state intervention, involuntary divorce opens private lives to unprecedented state control.
The logic reached its conclusion in measures devised by the Ameri can Law Institute (ALI).115 This influential practitioners’ group announced—on what authority other than their own will it was unclear—that the scope of family law would be extended to encompass jurisdiction over non-marital private arrangements such as cohabiting couples, both heterosexual and homosexual, and indeed all private homes.
Marriage defenders protested, but again they misunderstood the full implications. As they now argue with respect to same-sex marriage, traditionalists charged that ALI was undermining marriage by blurring the distinction between traditional marriage and cohabitation.116
But ALI was doing much more than this. Family law practitioners were using the toehold they had established in married households through divorce law to extend state jurisdiction into every household entailing an “intimate relationship,” regardless of whether that household was created through marriage. Divorce operatives were declaring that no home was too private to be beyond the reach of official government scrutiny. With breathtaking irony, an “intimate relationship” (which officials reserved for themselves to define) became not a status which is off-limits to government supervision, but precisely the opposite, one that gives government an entrée to exert virtually unlimited power over personal life. The “abolition of marriage” led straight to the abolition of private life.
ALI then went on to demand recognition of co-parenting agreements giving parental rights to the same-sex partners of custodial mothers, despite objections by the fathers.
The feminist-driven divorce machinery thus intertwines the personal and the political as nothing before, and its personal dimension is what disguises the intrusiveness of its political power. Divorce injects state power—including the penal apparatus with its police and prisons—directly into private households and private lives. “The personal is political” is no longer a theoretical slogan but a codified reality institutionally enforced by new and correspondingly feminist tribunals: the “family” courts. Through these feminist-controlled pseudo-courts men are subjected to punishments, including wholesale expropriation and summary incarceration, based entirely on the conduct of their private lives, without having to be charged with any actionable offense for which they could be tried in a criminal court.
Family courts are thus unquestionably the arm of the state that routinely reaches farthest into the private lives of individuals and families. The very concept of a “family” court—whose rulings are enforced by plainclothes officials who amount to family police—should alert us to danger. Roscoe Pound once observed that “the powers of the Star Chamber were a trifle in comparison with those of our . . . courts of domestic relations.”117 Family courts routinely separate children from parents who have done nothing legally wrong, ignore due process of law, and even silence political dissent. Unambiguous documentation proves that parents jailed without trial in divorce cases have been violently killed in prison.118Family courts usually operate behind closed doors and do not record their proceedings. Ostensibly this secrecy is to protect litigants’ privacy, though it has precisely the opposite effect: it provides a cloak to invade family privacy with impunity. Intimate personal information coerced from involuntary litigants is then made available to anyone, including the media, where it can be used to defame or blackmail anyone who is tempted to criticize the courts.
Courts are only the centerpiece of the divorce industry, a massive and largely hidden political underworld consisting of judges, lawyers, psychologists and psychiatrists, social workers, child protective services, child support enforcement agents, mediators, counselors, and feminist groups, plus an extensive host of economic interests, such as divorce planners, forensic accountants, real estate appraisers, and many others. These officials and professionals profess concern for the “best interest” of other people’s children.119 Yet their services are activated only with the dissolution of families, the removal of parents, and the seizure of children and property by the government. Whatever pieties they mouth therefore, the hard reality is that they have a concrete interest in facilitating family break-up and punishing anyone who stands in the way. Virtually all their power and earnings derive from the harm that divorce inflicts on children. “Fights over control of the children,” reports one divorce insider, “are where most of the billable hours in family court are consumed.”120 Harsh as it sounds, it is undeniable that these officials are united by one overriding interest: having children separated from their parents. Without the power to remove children from their parents—and first and foremost their fathers—this industry cannot thrive, and these officials will have no business. And so it must declare that the parents are criminals and that the fathers have “abandoned” their children, even when this is plainly not true. The first principle of the divorce industry, the basic premise without which it has no reason to exist and without which its operatives derive no earnings or power, the first item of business and the first measure taken when a divorce is filed and before anything is discussed is: remove the father.
Divorce instantly destroys fatherhood and, by extension, parenthood. The moment one spouse files for divorce, even if it is literally for “no fault” of the other spouse, the innocent parent enters the penal system: to raise his children as he sees fit according to his own values—to even be with his children without government authorization—is henceforth a crime for which he can be arrested and incarcerated indefinitely without trial. And there will be no record of the incarceration.
Few enterprises have forged so intimate and elaborate a public-private symbiosis. More than four decades of unrestrained divorce has created a vast industry with a stake in maximizing it. David Schramm cautiously estimated that divorce cost the public $33.3 billion annually in 2003.121 As one divorce lawyer forthrightly reveals,
Speaking as a lawyer, I am unalterably opposed to any change in our divorce act. Our divorce act has greatly increased divorces, crime, bankruptcy, and juvenile caseloads. Any change in our no-fault system would be a financial disaster for the bar and for me personally, as these type of cases comprise a majority of my practice.122Divorce and custody are the cash cow of the judiciary, constituting some 35–50% of civil litigation,123 and also bring employment and earnings to a host of executive and legislative officials, plus private hangers-on. Divorce litigation fuels well-known lines of political and judicial patronage.124 “The judge occupies a vital position . . . because of his control over lucrative patronage positions,” according to Herbert Jacob, where appointments “are generally passed out to the judge’s political cronies or to persons who can help his private practice.”125 Divorce also fills state and local government coffers with federal money for a host of divorce-related social problems. So entrenched has divorce become within our political economy and political culture that even perfunctory critics seem to have developed a vested interest in having something to criticize. Hardly anyone has an incentive to bring it under control.
To recognize the power of these interests is not to engage in conspiracy theories. It is to recognize that the family is not only an institution that is integral to our social order (as the conservative platitude has it); it is also one that can only function in this role if we protect it from calculations of political power. By politicizing the family and inviting the state to assume control over the household through involuntary divorce, feminists opened a Pandora’s Box of opportunities for numerous interests to weaken parents, grab power, exploit children, and plunder and criminalize fathers.
Dickens’ observation “the one great principle of the . . . law is to make business for itself” is strikingly validated. Nothing requires a judge to honor the divorcing parent’s initial request to forcibly separate the other parent from his children. A judge could rule that the father has committed no infraction that justifies being forcibly separated, even temporarily, that he has a recognized constitutional right not to be separated, and that neither the mother nor the court has any legal grounds to separate them. Such rulings never happen. Judges who refused to reward divorce would be rendering themselves redundant and denying earnings to a huge entourage of hangers-on, who have a strong say in the appointment and promotion of judges. So the judges have little choice but to channel litigants’ money to the lawyers and others by maximizing litigation. “Boni judicis est ampliare jurisdictionem, went the old saying,” observed Walter Bagehot; “‘It is the mark of a good judge to augment the fees of his court’, his own income, and the income of his subordinates.”126Having seized control of his children, the judge then presides over a feeding frenzy in which everything the father has and earns is doled out to cronies and clients of the court: attorneys’ fees, fees for guardians ad litem, child support, various psychological and custody evaluations, therapists, counselors, and others who manage to get their noses in the trough. It is no exaggeration to say that the driving principle behind divorce and custody proceedings is to loot the father and the taxpayer.
One especially striking example is the practice whereby involuntary litigants are ordered, on pain of incarceration, to pay the fees of lawyers they have not hired. In a kind of judicial shakedown, judges regularly order involuntary litigants to pay the fees of attorneys, psychotherapists, and other court officials they have not hired and jail them for failing to comply.127 What are described as “reasonable attorney’s fees” are not determined by the market forces of supply and demand but are set with the backing of the penal apparatus, with the police and jails acting as the attorneys’ private collection agency. There is thus effectively no limit to what can be charged.128
Such official thievery has become so rampant that even the feminist New York Times has reported on how easily “the divorce court leads to a jail cell.”129 In short, citizens completely innocent of any legal wrongdoing and simply minding their own business are ordered into court and told to write checks to officials they have not hired or they will be summarily arrested and jailed. Judges also order citizens to sell their houses and other property and turn the proceeds over to lawyers and others they have not hired.
Having successfully asserted the power to remove children from legally innocent parents, the courts then preside over other violations of basic constitutional rights and civil liberties. The entire divorce regime is nothing less than a massive assault on every major principle of the English Common Law, the United States Constitution, and centuries of Anglo-American principles of freedom and limited government.130 The logical conclusion of the system is that fathers are routinely jailed, for as much as five years, for criticizing judges.131 To enforce these punishments, the divorce apparat has created extensive cadres of feminist police: child protective services, domestic violence operations, and child support enforcement agencies. These political police do not wear uniforms, target men almost exclusively, and operate largely free of due process protections.
The growth of this feminist gendarmerie did not follow but preceded—in other words, it itself generated—a series of hysterias against men and especially fathers so hideous and inflammatory that no one, left or right, dared question the accusations or defend those accused. To the abandonment hoax was added the nonpayment of “child support,” whereby fathers whose children had been confiscated by the divorce courts were required to pay for it through instant “obligations” they had done nothing to incur and that could well constitute 60–100% of their income and even more. Any arrears are quickly collected by predawn raids at gunpoint. Wild and patently fabricated accusations of wife-beating, child abuse, and pedophilia turned the father into a monster and a pariah with whom no one dared associate. This government-propagated hysteria rationalized its own funding and expansion. While American family law is ostensibly the province of state and local government, Congress began subsidizing family dissolution with a panoply of lucrative federal programs to replace fathers with functionaries by doing precisely what fathers themselves were already doing in their homes before being evicted from them by the divorce judges: protect and provide for their children. Legislators invariably approve these measures by near-unanimous majorities, with no debate and without listening to any dissenting viewpoints, out of fear of being accused of being soft on “batterers,” “pedophiles,” and “deadbeat dads.” In each case, no public demand or outcry preceded the new law-enforcement powers; they were enacted entirely under pressure from feminists and their allies. (Yet neither did they meet any challenge by “pro-family” advocates.) Each of these hysterias originated in welfare policy, each is propagated largely by feminist lawyers and feminist social workers who receive the resulting federal funding, and each expanded dramatically because of involuntary divorce and child custody.
The criminal aspects of these witch-hunts will be examined shortly. The point here is that each one has dramatically exacerbated and even created the very problem it claims to address. Child support is popularly understood to be a mechanism for forcing men to pay for the children they have sired and abandoned. Once the abandonment myth is exploded and single-motherhood is revealed as a feminist rebellion against “patriarchy,” child support can be seen for what it is: a windfall subsidy on single-parent homes that pays mothers to create more of them by looting the father. Women are thus paid to have children without fathers or to divorce, ensuring precisely the explosion in fatherless children that we now see. Even more astoundingly, in the United States—the epicenter of these developments and the country where criminalization is most advanced—federal taxpayers pay into state government coffers according to the amount of child support the state collects. This gives state governments a financial incentive to create as many single-mother homes as possible. They accomplish this by first evicting fathers from their homes and then setting child support burdens at preposterously high levels, not only causing hardship for and criminalizing more fathers but increasing the incentive for more mothers to raise more children without them.132Trumped-up accusations of child abuse and domestic violence have a similar effect. The myth of the perverted and violent father provides a silver bullet for eliminating fathers who have been convicted of, tried for, and charged with, no crime whatever. It is also effective for cowing lawmakers and judges into submission to feminist demands and for ensuring that no trouble is caused by ostensibly “pro-family” conservatives and Christians, who likewise live in terror of being accused of defending “sex offenders.”133Completely innocent fathers are now routinely accused of pedophilia and other sex offenses, purely in order to eliminate them from their homes and confiscate their children. Yet it is firmly proven in the scientific literature that a miniscule number in fact ever perpetrate these crimes.134 Instead, through the lobbying of the same sexual radicals, the real pedophiles are becoming legal adoptive parents.
95. Susan Shell, “The Liberal Case Against Gay Marriage,” The Public Interest 156 (Summer 2004), 7.
96. May v. Anderson, 345 U.S. 528, 533 (1953); Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Stanley v. Illinois, 405 U.S. 645 (1971). See Donald C. Hubin, “Parental Rights and Due Process,” Journal of Law and Family Studies, vol. 1, no. 2 (1999), 123 and passim.
97. Langton v. Maloney, 527 F. Supp. 538, D.C. Conn. (1981).
98. Quoted in Bruce C. Hafen, “Children’s Liberation and the New Egalitarianism: Some Reservations about Abandoning Youth to Their ‘Rights,’” Brigham Young University Law Review (1976), 615–16.
99. Mike Donnelly, “Religious Freedom in Education,” International Journal for Religious Freedom, vol. 4, no. 2 (2011).
100. Shell, “Liberal Case,” 5–6.
101. The best effort is Sherif Girgis, Robert P. George, and Ryan T. Anderson, “What Is Marriage?” Harvard Journal of Law and Public Policy, vol. 34, no. 1 (Winter 2010), 245–87. Of course, all these arguments are directed against same-sex marriage.
102. The best formulation is Allan Carlson, “The End of Marriage,” Touchstone, September 2006.
103. Once this is recognized, it is clear that gender-neutral marriage is a contradiction in terms. Moreover, the homosexualists can have no answer, because even fruitless marriages can adopt, and the children will still have a father. Other benefits are rightly claimed for marriage by its advocates. But in the end, the central one is this, to establish fatherhood. Once this is understood, everything else about the current problems of marriage and the family falls into place. And once this is understood, same-sex marriage is revealed as not simply an absurdity, but an ideological attack on civilization’s most basic institution.
104. Jyl Josephson, “Citizenship, Same-Sex Marriage, and Feminist Critiques of Marriage,” Perspectives on Politics, vol. 3, no. 2 (June 2005), 275.
105. E. g., Leon R. Kass, “The End of Courtship,” The Public Interest 126 (Winter 1997).
106. Thomas Hobbes, Leviathan, part II, ch. 20 (Harmondsworth: Penguin, 1982), 254 (emphasis added).
107. Frederick Pollack and Frederic William Maitland, The History of English Law (2d edn., 1968), 398–99. For the feminist manipulation of this principle, see O’Leary, Gender Agenda, 32.
108. Gallagher, Abolition of Marriage.
109. Robert Whelan (ed.), Just a Piece of Paper? (London: Institute of Economic Affairs, 1995), introduction, 3.
110. Quoted in Judy Parejko, Stolen Vows: The Illusion of No-Fault Divorce and the Rise of the American Divorce Industry (Collierville, Tennessee: InstantPublisher, 2002), 52.
111. Whitehead, Divorce Culture, 70–71.
112. Judy Parejko, “No Fair Process in Divorce Laws,” Middletown Journal, 27 January 2004.
113. McLarnon v. Jokisch, 431 Mass. 343 (2000).
114. Hubin, “Parental Rights,” 136.
115. Principles of the Law of Family Dissolution: Analysis and Recommendations (Philadelphia: American Law Institute, 2002). Josephson’s contention (“Citizenship,” 270) that the privacy of marriage is “not accorded to those who do not or may not marry,” while theoretically logical, is therefore diametrically wrong. Cohabiting couples have enjoyed privacy denied by divorce law to the married, which is precisely the freedom ALI seeks to curtail.
116. The Future of Family Law: Law and the Marriage Crisis in North America (New York: Institute for American Values, 2005).
117. David Heleniak, “The New Star Chamber,” Rutgers Law Review, vol. 57, no. 3 (Spring 2005), 1009.
118. Baskerville, Taken Into Custody, 157–58.
119. For critiques of “the best interest of the child,” see Baskerville, Taken Into Custody, ch. 1, and Schlafly, Who Killed, ch. 4.
120. Parejko, Stolen Vows, 99.
121. David G. Schramm, “Counting the Cost of Divorce: What Those Who Know Better Rarely Acknowledge,” The Family in America (Fall, 2009) http://familyinamerica.org/journals/fall-2009/counting-cost-divorce-what-those-who-know-better-rarely-acknowledge/#.WBSfnS0rL3h.
122. Quoted in Alex J. Harris, “Why Divorce is Missing from the Political Agenda in America: A Comprehensive Treatment of the Obstacles to Reform,” George Wyeth Review, vol. 4, no. 1 (Fall 2012), 34, and Mike McManus, How to Cut America’s Divorce Rate in Half (Potomac, MD: Marriage Savers, 2008), 38–39.
123. Helen Alvare, “Types and Styles of Family Proceedings,” Report of the United States to the XII World Congress, International Association of Procedural Law, 2003, 1, cautiously cites the lower figure.
124. Jerome R. Corsi, Judicial Politics (Englewood Cliffs, NJ: Prentice-Hall, 1984), 107–14, and Richard Watson and Rondal Downing, The Politics of the Bench and the Bar (New York: John Wiley and Sons, 1969), 98, 336.
125. Herbert Jacob, Justice in America: Courts, Lawyers, and the Judicial Process (4th edn., Boston and Toronto: Little Brown, 1984), 112.
126. The English Constitution (Cambridge: Cambridge University Press, 2001), 144.
127. Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987).
128. Baskerville, Taken Into Custody, ch. 1.
129. Paul Vitello, “When the Divorce Court Leads to a Jail Cell,” New York Times, 15 February 2007.
130. Baskerville, Taken Into Custody, ch. 2.
131. Ibid., and Schlafly, Who Killed, 116–17.
132. Baskerville, Taken Into Custody, ch. 3.
133. Ibid., ch. 4.
134. Leslie Margolin and John Craft, “Child Sexual Abuse by Caretakers,” Family Relations 38 (1989); Martin Daly and Margo Wilson, “Child Abuse and Other Risks of Not Living with Both Parents,” Journal of Ethnology and Sociobiology 6 (1985).
THE NEW POLITICS OF SEX
The Sexual Revolution, Civil Liberties, and the Growth of Governmental Power
by
Stephen Baskerville
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