Divorce Ban Has Ethical Flaws

David B. Lat, in his column "Imposing Morality is Fun" (Nov. 28, 1995), commits two serious errors in his lessons on marriage and the moral nature of law.

His first assertion, that a ban on divorce is desirable for it encourages couples "to work through their differences instead of splitting up" is a gross simplification of relations between men and women. Two people who buy a house and raise a child together have plenty of forces binding them together; nobody wants to get a divorce. But, despite all these natural bonds between them, if two people cannot be happy together, they probably will (and should) pursue separation regardless of what society says. Especially when people marry young, they often change and develop a personality better suited for companionship with another. If this happens, it is very cruel to force two people to remain together unhappy for the rest of their lives solely to preserve the sanctity of an institution which no longer works for them.

Lat is right when he says that children are probably better off raised by both parents. But this is not true if the two parents are unhappily married. When I was eight, I tried hard to prevent my parents from getting divorced, wanting to live in a stable home with both my parents. But they grew apart, and would have been miserable living together no matter how hard they tried. I think it was much healthier for me to grow up exposed to my parents living in separate loving relationships than to remain with both parents in a home environment saturated with resentment.

Lat's second assertion, however, that all laws involve an imposition of morality, is to me the more pernicious of the two. Lat argues that preventing people from getting a divorce has the same characteristic of moral judgment as every other law.

Most laws are a compromise which society decides between two conflicting desires. If you want to swing your arm wildly, you have every right to do so, but this right ends at the tip of my nose. If person A wants to commit violent acts for fun, and person B does not appreciate being beaten or killed, society makes a policy choice (simple in this situation) which values A's right to shoot and stab much lower than B's right not to be shot and stabbed. Sometimes the situation is less clear: Person A wants to listen to loud music, and person B wants to live in quiet surroundings. Laws are society's way of reaching a compromise (such as allowing music to be played before 11 p.m.).

A ban on divorce is a very different kind of law. Such a ban interferes with the desires of two consenting adults. The first kind of law effects a compromise between conflicting desires, while the second proscribes a behavior onto a group of people who want to be left alone. There is a world of difference between these two types of laws.

This is not to say that society should never try to interfere when there is no conflict of rights--only that it should be extremely wary of such interference. Alan Dershowitz gives two cases when such laws are just: when the law is a small burden and would save many lives (such as mandatory seat belt laws) or when the law interferes with someone who may be under a temporary loss of control (such as stopping someone from jumping off the top of their building). A ban on divorce passes neither of these tests. As a society, we should be very cautious about enacting laws which attempt to engineer the way a group of people live when this group does not want engineering. Such laws can easily (and there are innumerable precedents in history) degenerate into a tyranny of the majority by those who believe everyone's morality fell out of the sky and landed on Mount Sinai, and those who don't. Unlike what Lat said, we should a priori be skeptical and hesitant toward laws which restrict the freedom of a group which wants to be left alone. --Joshua E. Seims '96