74 Pages Posted: 15 Jul 2006
In 1997, Louisiana enacted the nation's first "Covenant Marriage" law, creating a two-tiered system of marriage. Under this two-tiered system, couples may choose a traditional marriage contract, with minimal formalities of formation and dissolution, or they may choose a covenant marriage, which imposes heightened requirements both for entrance and prospective exit from the marriage. This Article evaluates Louisiana's Covenant Marriage Law both as it encapsulates the increasing dissatisfaction with current marriage and divorce laws in America and as it presents a developing solution.
The onset of no-fault divorce beginning in the late 1960s coincided with an increasing understanding at American law that marriage is no more than a mere contract between two individuals. But while there were many salutary reasons for the passage of no-fault divorce laws, there is increasing consensus that the state of marriage in America is in disarray and the ease of divorce too often multiplies conflict rather than reducing it. Louisiana's Covenant Marriage Law was passed as a corrective to the societal ills that attend divorce and its effects (especially upon women and children), for the ramifications of divorce have repercussions for entire communities and not simply for those initial entrants into the marital "contract." The law attempts to ameliorate some of the problems by providing a voluntary alternative - under which couples receive additional counseling and notice prior to entering marriage and simultaneously subject themselves to higher divorce standards that no longer countenance a "no-fault" option.
But the Covenant Marriage Law itself has been subjected to host of criticism. Critics contend that the law will do little to improve the condition of women and children, will fail to strengthen society, and improperly injects religion into the affairs of the state. In addition, there are also concerns about the constitutionality of the law. This Article addresses such concerns at length, concluding that while opponents may disagree with the idea or potential impact of the law, the objections are only political and policy concerns that have no bearing on the ultimate legality and constitutionality of the law. (The critics, however, highlight potential shortcomings of the Covenant Marriage Law that indicate that its effects may be less than its proponents desire. Indeed, in the time shortly after the law's passage, it has had little effect within Louisiana and has sparked much more debate outside of Louisiana than it has led to the passage of similar laws.)
This Article advocates that Louisiana's Covenant Marriage Act is a step in the right direction of reform, but does not go far enough. Instead, the state should move toward acknowledging and respecting the internal norms and regulations of various faith traditions regarding marriage and divorce. This openness and respect should not simply be spoken; it should be reified in law. The kind of "robust pluralism" advocated herein would permit various faith groups to possess original jurisdiction over issues of marriage and divorce. While the state must maintain a minimum guideline to protect the health and safety of its citizens, persons who desire to conform to the strictures and structures of religious groups should be allowed to do so.
Keywords: Covenant Marriage, Divorce, Religion, Religious, Marriage, Covenant, no-fault, pluralism, family, multi-tiered
Suggested Citation: Suggested Citation
Nichols, Joel A., Louisiana's Covenant Marriage Law: A First Step Towards a More Robust Pluralism in Marriage and Divorce Law?. Emory Law Journal, Vol. 47, 1998. Available at SSRN: https://ssrn.com/abstract=762464