MacKenzie, Eric F.

English

Duke Law Scholarship Repository

SPIRITUAL VALUES AND THE FAMILY IN COURTERc F. MACKENZIE*The topic assigned for discussion in this paper is happily ambiguous. "SpiritualValues" may be interpreted as referring to religious teachings; but the term mayequally refer to broad considerations of a purely social character.First of all, it is here recorded that many millions of American citizens holdfirmly to a purely religious judgment concerning the evils of divorce. They read thenineteenth chapter of the Gospel according to St. Matthew, verses three to twelve,and find there, not a mere record of the views of an ancient seer, but rather anauthoritative decision proclaimed by the Incarnate Lawgiver for all mankind. God'sauthority, these citizens hold, is supreme. Against His law, no argument orauthority may be cited. Hence, when a husband and wife are validly and sacra-mentally married, no man can put them asunder; and no court, by a bill of divorce,can endow them with a right to remarry Under our American system, thesecitizens may hold these opinions, with others dissenting. They may by their dis-cussions and their votes try to convince others to reform our existing legal institu-tions, so that divorce will not merely be regulated, but even eliminated.This viewpoint, however, seems to be held by only a minority. The majorityhave other religious tenets in the matter of divorce, or none at all. A purelytheological approach to the existing problem, therefore, offers little hope of apresently practical solution. This does not mean, however, that a restriction ofdivorce will be advocated solely by those who have theological convictions. Onanother plane, there are basic social values which strongly suggest and support areforming attitude. Spiritual values, in this sense, involve no sectarian differences.All good citizens can consider these principles sincerely and fairly, and draw fromthem appropriate conclusions. Exposition of these values therefore forms the bodyof this paper.Historically, every political society has recognized that the family is the essentialand basic unit of social organization, and has given to it every favor and protection.2This has been true in our own American legal history. Corpus Juris3 defines marri-age as a status*J.C.D., S.T.D., LL.D. Catholic Auxiliary Bishop of Boston.1 For a fuller but non-technical statement of Catholic viewpoint, see 52 HOsnLsTiC AND PASTORALRay. 888-896 (1952).'Cf. The Soviet Family, i89 ATLANTC MONTHLY 18-20 (1952) for a popularized report on theSoviet's reversal of public policy, from unlimited divorce to almost complete prohibition of divorce. There-establishment of strong and legally protected families was dictated by a purely secularist and in-tellectual analysis of the needs of the state. Such authoritarian procedure is impossible in the UnitedStates; but it is here suggested that "the children of this world are wiser in their generation than thechildren of light."'38 C. J. (MARRIAGE. DEFINITION AND NATURE §1) 1273-1274 (1925), with authorities cited.SPIRITUAL VALUES AND THE FAMILY IN COURT* .. in which the state is deeply concerned, and over which the state exercises a jealous andexclusive dominion.Lombard4 writes:Marriage . . . is founded upon the mutual consent of capable contracting parties. It:. . supersedes all other contracts between the parties and, with certain exceptions, it isinconsistent with the power to make any new ones. As between the immediate parties,it is a civil contract; but as between them and the State, it is a status controlled. andregulated by considerations of public policy -which are paramount: to .the rightsof -the--,parties. . . . The Commonwealth has a deep interest to see that it is not put intojeopardy, but maintained. The marriage contract can neither be cancelled nor altered bythe will of the parties.These familiar legal phrases once applied literally and directly to the individualcases which arose. Today it is all too evident that they have chiefly a historical andnominal acceptance. Divorces by the hundreds of thousands are granted withoutinvestigation or contested trial. It is in the field of divorce practice, and therealone, that, notoriously, judicial decisions follow upon perjury and collusion, withno serious effort to prevent this perversion of justice.5 It is admitted that divorcecourts often cease to be tribunals to discover the truth and apply the law impartially,and rather are bureaus to register decisions already taken by the litigants. In thesecases, therefore, the parties have effectually cancelled their status by their own will,general legal principles to the contrary notwithstanding.The present problem is of modern growth, largely within the twentieth century,accelerated since the first World War.6 It had been in part sanctioned by statutesand by judicial procedures. For the most part, however, it derives from a changein public opinion. Despite criticisms and cries of alarm, the public has never ralliedto oppose or check the liberalization of divorce. Amid this public apathy, manylawyers have found a substantial income from divorce practice, while judges andcourt officers owe their honors and status to the increase in the number of cases.Certain states attract libellants from afar, with profit not merely to courts andlawyers, but also to travel agencies, hotels, amusement centers, and all the rest.Naturally these vested interests have favored easier divorces. Also, millions ofcitizens, already divorced, have naturally tended to resist any movement which,by implication, would put blame on their character and social status. Finally thereare many citizens of highest calibre who profess to be shocked and horrified by thestatistical reports of divorce throughout the nation, but yet have upheld and de-fended individual cases among their personal acquaintance. These'cases, they insist,are purely private matters; the marriage bond had long been completely broken,beyond hope of repair; the continuance of the tie would do no good to anyone; noreasonable person would oppose the efforts of the unhappy wife or husband to findJosEPH CumMINGS, MARRIAGE AND DIvoRcE LAws oF MAssAcHsus-rs 3 (zd ed. 1937), with authoritiescited.'Cf. dissenting opinion of Crane, J., in Mirizio v. Mirizio, 242 N. Y. 74, 87, t~o N. E. 605, 609(1926).'Walsh, Marriage and Civil Law, 23 ST. JorN's L. REv. 2o9 (1949).LAW AND CONTMPORARY PROBLEMSfreedom and happiness in a new marriage. The theoretical condemnation of di-vorce in general has not persuaded these citizens to any judgment against divorcein individual cases.Yet it is the repetition of these individual cases, by the hundreds of thousands,which gives us our horrifying statistical tables. It is an old human frailty to beunable to see the forest because of the trees. It is this concentration on individualcases which has made the public forget broad social implications. In contrast, thispaper invites the readers of Law and Contemporary Problems, together with jurists,statesmen, leaders of public opinion, and all citizens of real vision, to remember thatbad cases make bad law, and to consider values and purposes and procedures asthey affect the common weal, omitting any personal and individual applications.It is here submitted that social values call for a return to an older and stricterupholding of the permanence of the marriage bond. It has always been stated thatthe state has interests in every single marriage, interests which are paramount tothe wishes of the parties themselves. No decision or statute, it would seem, has everwritten into law the precise nature of this public interest.7 The reference was to aphilosophy of society which was generally accepted, and hence needed no definition.Today, with a change in public thinking, it is well to recur to venerable and oncefamiliar principles.First, and basically, the public seems to have forgotten that the strength andvigor of national life depend directly on strong and vigorous family units; and,negatively, that decay in family life is a warning of national weakness, and of avacuum into which some other race or nation will move, because of its superiorstrength and hardiness. Gibbon included this as a chief factor in his analysis of thedecline and fall of the Roman Empire. The same historical correlation has beenverified in other ages and other nations. In some part, this argument may involvea "cannon fodder" valuation of the family; but actually it extends to more thanthe mere number of youths available for military service.There are spiritual values which, if lacking, leave the nation's citizens weakenedin the essential courage and devotion and loyal will to serve the common weal;which, if present, cause an esprit de corps which makes invincible a people inferiorin numbers and equipment. Commonly these values center upon hearth and home;are based on the devotion, the self-sacrifice, and the joy of possession and self-expression which each man has known in his own family, and which he will notcede to any aggressor. There are those who, despite the heroism of our boys inKorea, cry that this consciousness of personal dignity and duty are lacking in our'Some brief generalizations may be found, as: "Marriage is not mercly a contract betwccn theparties. It is the foundation of the family. It is a social institution of the highest importance ...The Commonwealth has a deep interest that its integrity is not jeopardized." French v. McAnarney,290 Mass. 544, 546, 195 N. E. 714, 715 (1935)."The great object of marriage in a civilized and Christian community is to secure the existence andpermanence of the family relation, and to insure the legitimacy of offspring." Richardson v. Richardson,246 Mass. 353, 355, 140 N. E. 73 (1923), quoting Chief Justice Bigelow in Reynolds v. Reynolds, 3Allen 6o5, 607 (Mass. x862).SPIRITUAL VALUES AND THE FAMILY IN COURTsociety today. They argue that those who have nothing and expect nothingpermanent or supremely valuable in their personal lives will have no high standardsof devotion to their country, whether in peace or in war. One need not share inthis pessimism; yet-if the home in which one was reared, and the home whichone has established, were secure and beyond risk of dissolution, would one nothave a greater stake in the preservation of such a happy fortune? Does not thepresent practice of thoughtless marriage and easy divorce threaten the foundationsof patriotism and good citizenship? If so, who can resist a reform in the field ofmarriage and divorce?8A second consideration derives from the actual working of divorce courts. Itwill appeal chiefly to those who retain a personal conscience in the observance ofthe ethics of the legal profession, and who have an innate revulsion against perjuryand deception in the judicial process. A bad tree brings forth bad fruit; and thevalue of an existing system may be judged by the evils which seem inextricablefrom its daily practice.It was remarked above that the whole field of divorce litigation is malodorous.Deliberate perjury and misinformation are regularly presented to the courts, oftenby connivance of the respondents and their attorneys. Where the law calls for proofof the commissions of criminally guilty acts, whether of adultery or cruelty or what-ever, actual practice is satisfied by specious technicalities, of no real truth or gravity.Where the statutes do not provide for an easy divorce, procedure makes availableeasy annulments.It is commonplace that a majority of lawyers apologize for their participationin any divorce case. They state frankly that they wish to have no part in thisfield of practice. There is an implication that their brethren who make divorce amajor or even sole activity are less than ethical. But may not a question be ad-dressed to these barristers? Should they not use their influence and standing tocorrect a situation of which they thoroughly disapprove? Should they tolerate insilence the fact that a minority of lawyers bring the profession into disrepute bysuborning perjury and all the rest? "Live and let live" is well enough in accidentals:it is cowardice or worse when essential standards of honor and truth are involved.A third consideration derives from a psychological survey of the parties to anydivorce, and their children. At present, with divorce and remarriage easily available,many marriages are rashly contracted. Sometimes the only basis for the marriageis a rash impulse, with no thought at all of the future. Often enough, for reasonseasily imaginable, there is an intention to marry, but to terminate the union aspromptly as possible. More often still, it is foreseen that a future divorce is entirelyprobable, but it is felt that some immediate satisfaction is more important thanany later unhappiness. In all these cases, the guarantee of easy escape is a decisivemotive for the unwise marriage. The elimination of this guarantee will not elimi-a P.AsFoiu (May, 1952), published by Newsweek, New York, N. Y., gives a popular survey of thecurrent divorce problem in the United States and the pros and cons of the newly proposed FamilyCourt. In this reference, compare pages 2-4.24 LAw ANi CONTEMPORARY PROBLEMSnate frailty and stupidity and rashness in our young people; but is it not socially wiseand desirable to check, rather than encourage, whatever is rash and unthinkingand destined to tragedy?Again: each divorce or annulment sets a man and woman free from their mutualobligations, and free from the duties to society which they had formerly assumed,Each is given the right to remarry, and hence - to undertake precisely the sameobligations whichn,, oe, ecmoedct. they had previously failed -to, fulfill. There are alltoo many cases in which a party is set free to repeat, with a new partner, the samemistakes and crimes which have already brought tragedy in the first marriage.Outside these cases, it is also true that the whole process of divorce will of its naturecause some psychological trauma even in honorable and generous and normal menand women. The shame of failure, the inevitable bitterness and hatred are hurtful,if not ruinous, to character. The hope of new happiness must be clouded by everpresent memories of past disappointment. The new marriage suffers a seriouspsychological handicap.If this be true of adults, it is even more true of their children. Those reared ina broken home can never have the background of safety, assured support, lovingunderstanding, and the sense of belonging, which are essential to adolescent years.The balanced influence of both mother and father will be missing. It is all tooobvious that the child in large part pays the price of the parents' quarrels and di-vorce.9 For the good, then, of the children, and even for the good of the parentsthemselves, there is need to halt the mad and uncontrolled rush from quarrel tolibel, from libel to divorce, from divorce to remarriage.A last consideration is found in the evidence that the simple device of delayingaction on divorce libels has resulted in the withdrawal of the libel and the attain-ment of reconciliation. A significant number of people soon regret their first hastyaction and gladly welcome any face-saving excuse to return and renew commonlife. With calm reflection, they come to see that divorce does not end problems, butrather creates new ones. It is thus proved that "divorce mills" do much unnecessaryand avoidable harm to individuals, to families, and to the common weal.10All this and more must be said of spiritual values which are neglected in thecurrent granting of so many divorces. There have been many plans to work areformation in law and procedure. The latest is discussed from many angles in thisnumber of Law and Contemporary Problems. It must, however, be noted thatthe problem is really not one of drafting new statutes or introducing new procedures.The prevalence of divorce is due, not so much to the law and the courts, as to popu-lar American opinion. Behind each of the divorce libels is the decision of one orboth of the partners to file and prosecute the action; but behind this decisionis the community judgment that these individuals are doing no wrong, and that itis for the partners to decide their individual futures. There is no remembrance of'Id. at 4." rd. at z5.SPIRITUAL VALUES AND THE FAMILY IN COURTthe interests of the state "which are paramount to the rights of the parties." Theproblem therefore is one of education: how to create a general consciousness of socialresponsibility whenever the married status is assumed, and of similar social reponsi-bility whenever the status is endangered., If American public opinion remains unconscious of any harm resulting fromwidespread and almost uncontrolled divorce, it is useless to write new statutes andinstall new procedures. However the law may read, publicly approved divorcescannot be denied to the millions of litigants. It is therefore a question of fact: haveall these divorces actually harmed our United States? If .not, there is little reason(other than religious) to urge reforming measures. But if harm has been doneto the common welfare of us all, to wives and husbands and children, and to thedignity and purity of our judicial system, that fact must be proclaimed untiringlyby all those who know the harm. On them rests the obligation to lead publicopinion to a sounder and healthier judgment. The contemporary problem iswhether or not they are able and willing to do so."' In THE SPnRT oF LERTY-PAPERS AND ADDRESSES OF LEARNED HAND i9 o (Irving Dilliard ed.,1952), Judge Hand has written: "Liberty lies in the hearts of men and women; when it dies there,no constitution, no law, no court can save it. So too for a spiritual valuation of marriage andthe family.

Spiritual Values and the Family in Court

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Spiritual Values and the Family in Court

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