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Family Law
Fall 2004
Professor
Dalton
preliminary
syllabus AND first assignment, with
The assigned text for the course is Weisberg and Appleton, Modern Family Law: Cases and Materials,
2nd ed. 2002 (
Call the bookstore (617/373-2286) or Gnomon Copy (617/536-4600) to
determine if the course materials are available in advance.
The preliminary syllabus below includes a class by class description of the course. Specific assignments are given only for the first four classes: assignments for subsequent classes will be included with each part of the Supplement, as it becomes available.
The assignment and readings for the first class are also attached here, and available, with this announcement, through the law school website as well.
PRELIMINARY SYLLABUS
UNIT ONE: INTRODUCTION AND DEFINITIONS
Class 1: What is Marriage For?
Materials: Excerpts from E.J. Graff and Laura Kipnis, attached hereto.
UNIT TWO: MARRIAGE
Class 2: Is Marriage a Fundamental Right?
Materials: Weisberg, pp. 151-171;
Supp. Part I, additional text from Zablocki v. Redhail.
Class 3: Same-Sex Marriage
Materials: Weisberg, pp. 171-180; 182-186;
Supp. Part I, Goodridge
Class 4: Same-Sex Marriage continued
Materials: Weisberg, pp. 186-190;
Supp. Part I, Problem: Same-Sex Marriage and State Lines;
Silberman
excerpt, Rosengarten v. Downes
Class 5: Sex Between Relatives: Incest
Class 6: How Many Spouses? At What Age?
Class 7: Void and Voidable Marriages and Annulment
Class 8: Half-Way There: Informal and Quasi Marriages and Presumptions
UNIT THREE: “FAMILIES” COMING APART: THE MONEY
Class 9: Cohabitation: The Legal Status of Couples who Choose not to Marry
Class 10: Cohabitation continued
Class 11: Pre-Nuptial Agreements
Class 12: Fault-Based Divorce
Class 12: The No-Fault Revolution
Class 13: The Role of the Divorce Lawyer
Class 14: Dividing the Assets
Class 15: Alimony and Taxes
Class 16: Child Support
UNIT FOUR: “FAMILIES” COMING APART: ACCESS TO CHILDREN
Class 17: Child Custody
Class 18: Child Custody continued
Class 19: Visitation, and the new ALI regime
Class 20: Relocation
Class 21: Children, Jurisdiction and Enforcement
UNIT FIVE: CONCLUSION
Class 22: Wrap-Up
Family Law
Fall 2004
Professor Dalton
Assignment for
our first class on August 31
There are just two readings for today’s class, both included here. We are going to ask ourselves the question that E.J. Graff chose as the title for her book, from which the first reading is taken: “What is Marriage For?”
So, first, I’d like to pool our own current reflections. If you are married, why did you do it?! If you think you will be or would like to be married at some point in the future, why, exactly, does the institution appeal? If you’ve left a marriage, would you risk another, or has your view of the institution changed enough that you’d rather stay outside its boundaries? If you’re in a committed relationship, but you’ve decided against marriage, why is that? If you’re not, but you’re pretty certain that marriage isn’t for you, why is that?
Incidentally, this will be our first exercise in disciplined reflection on our own experiences. What do I mean by that? I mean that since we are a somewhat representative group of wed, unwed, partnered and unpartnered men and women, not to mention our common former status as children of our wed, unwed, partnered and unpartnered parents, our experiences are relevant to the issues we’ll be dealing with throughout the course. And we probably have things to teach each other. At the same time, if our efforts at sharing our experiences degenerate into self-indulgent story-telling, they will not be well-received, and the social fabric of the class is likely to wear thin. You know what I mean; you’ve been there. So the discipline lies in shaping what you share around the particular question we’re asking or issue we’re dealing with, making it as brief as you can, and helping us understand its relevance. As well as making sure you’re not asserting that your perspective is the only relevant or right-minded one.
Our second task for the day is to set our own sense of the contemporary functions of marriage against the different functions it has served over time – or the functions claimed for it by private individuals and groups, the state and the church – to name the three sets of actors who have quarreled for control over its meaning and functioning throughout history. You’d have to read the whole of E.J.Graff’s book – which I highly recommend as an informative and painless romp through history, but don’t dare assign – to grasp the entirety of her argument, but between what you already know, and what I can bring, I think we can sketch out a framework that will be of assistance to us in the weeks ahead. It will help us because, as Graff says, marriage is “an archeological site,” and the legal rules that govern it reflect that layered history. Sometimes old pieces have been put to more contemporary uses, sometimes they seem as anachronistic as wisdom teeth, but understanding where they came from and why helps us understand how to fit them into the bigger picture.
From:
E. J. Graff, What is Marriage For?
Beacon Press, 1999
Introduction
(pp. ix-xv)
Every family is full to the brim with marriage stories that are intriguing or shocking, heartwarming or startling. Mine is no exception. My mother’s parents, for instance, married secretly with a cigar band as their wedding ring: this was in the depths of the Depression, and as my grandmother-to-be Rebecca and my grandfather-to-be Al were the main support of their families, they felt too responsible to their impoverished families to move out, and so told no one they were married for many months. My mother, like so many in the late 19505, married just days before she turned 21. And in the 1970s, again like so many in her cohort, she divorced just before she turned 40. My other grandfather divorced his first wife to marry a second. Her Irish family rejected him, a divorced Jew, and when his second wife died he remarried his first. One of his sons, my uncle, married a black woman and (depending on who’s telling the story) either drifted or was pushed away from our family. All these stories were shaped by the social forces of their time, such as the Depression, anti-Semitism, racism, postwar marriage hysteria-not to mention forces of all time, like the desire for sex, children, and companionship.
And me? Early in my thirties, I married the woman I adore.
Or did I? Can two women get married? I wasn’t at all sure. … [A]after Madeline and I had our ceremony (attended by family and friends), I became urgently determined to understand what we had done. Had our ceremony had anything to do with marriage - and if so, what? What did it mean that after millennia in which marriage has meant Boy + Girl = Babies, every postindustrial nation is beginning to publicly discuss opening the institution to couples like Madeline and myself-just as so many people are holding a mass civil disobedience action against legal marriage, having sex and babies outside its walls? Is marriage a worthy or useful goal-or a way of forcing people to squeeze their lives and dreams into too-small boxes? Is civil marriage, which locks private affections into an intimate relationship with the state, an institution I wanted to enter? Is marriage a patriarchal hangover, useful only to those who want to assign each womb to some male
owner? What, to put it simply, is marriage for?
…
[W]ith or without a look at … contrasting societies, the West’s marriage history is plenty contentious. When you’ve listened mainly to the American shouting matches over whether the death of Ozzie and Harriet is good or bad, it’s disorienting to discover the depth and variety in marriage’s historical shifts-which include the weird demographic blip of the 1950s, when people like my mother and father suddenly married at much younger ages and had more children, going against history’s trends. Although people throughout history have been sure that they’d know a marriage if they saw one, its exact borders have been so slippery as to garner thousands of pages of commentary from lawyers and scholars, rabbis and monks.
Marriage, in other words, turns out to be a kind of
When hearing this book’s title and
central question, people often laugh with something between amusement and
discomfort, as If I’d exposed their secret frustrations. Sometimes their
answers are wistful (one divorced man, aiming at irony and missing, said, “It’s
for everyone but me”), sometimes light-hearted (“For the presents”), sometimes
practical (“I needed dental insurance”)-but almost everyone’s answers are
personal. That surprised me, since my main goal was to look at marriage’s
public policy purposes. But those answers kept reminding me that public and
private are not separate: they are, rather, twin sides of a single Moebius strip. How history has shifted its answers about marriage’s
public purposes has everything to do with individual marriages’ shifting inner
lives. To return to my metaphor. If public policy has
altered the position of this
And it’s in those shifts that I found the answer to my private question: why do so many same-sex couples suddenly feel we can make a public claim to this institution-and why are those claims being taken seriously (in many different forms) in legislatures and courts as remote from one another as Hawaii, Vermont, Alaska, the Netherlands, Finland, France, and South Africa? The answer is also the answer to many other questions, such as, Why are so many of my cohorts cohabiting rather than registering with the state? Why are so many people divorcing and remarrying rather than putting up with relationships that chafe them raw? Why do wives no longer take second-class status for granted but argue for full equality? Why is contraception-so recently considered immoral, illegal, and unmentionable—almost universally accepted now, just as rates of adoption and IVF-assisted births are skyrocketing?
…[T]he short answer is that marriage transformed dramatically in the nineteenth century. With capitalism, marriage stopped being the main way that the rich exchanged their life’s property, and that the rest of us found our life’s main coworker. That change-the death of “traditional” marriage, which had dropped ill in the mid-eighteenth century and breathed its last by the 1920s-was so dramatic that it set off changes in every other philosophy of marriage: what makes sex sacred or even acceptable; what children need to grow up well; how far in or out of their kinship circle (whether defined by tribe, religion, race, ethnicity, or class) people are expected or allowed to marry; what marriage rules are required to keep social order; and how important it is to consult your own heart.
Of course, not everything can be reduced to economics-which is why this book is filled with marriage battles between the Romans and the early Christians, the radical Protestants and the sixteenth-century Catholics, the Comstock reactionaries and the Sanger insurgency, and so much more.
You may soon notice that this book often looks at marriage from the vantage point of women. That’s because I wanted to overcome the vantage point of women. That’s because I wanted to overcome a bias that struck me as especially odd: leaving aside advice books, much that is written about marriage is quite clearly by, about and for men. (One respected sociologist actually suggested that women marry young and stay married to avoid accumulating ex-boyfriends and ex-husbands, which would put them at a higher risk for murder. Does he really think abuse is so inescapable that women better just pick one abuser and try to avoid antagonizing him?) The history of marriage looks slightly different from a female point of view. For one thing, it soon becomes clear that many of the nineteenth-century changes that led to today’s marriage battles are changes in the status of women: whether sex must lead instantly to babies, or whether contraception should be legal; whether married women should be free to own property, or to have custody of their children, or to hold jobs. And once men and women are equal, choosing their jobs (both within and outside marriage) as earner, nurturer, cook, or household handyperson based on their desires and talents and circumstances rather than on sex, then what bars two men or two women from marrying?
That may seem like a large
intellectual leap; I hope it will seem so no longer by the time you finish this
book. What’s more important to notice is that the philosophy of marriage that’s
based on equality, freedom, and the integrity of the individual conscience is under siege. Plenty of people want to run other people’s
sexual and emotional lives, refusing to trust each of us to our own conscience.
In 1998 the Southern Baptist Convention reminded women that they belong at
their husband’s heel, not by his side- and condemned Disney for recognizing
same-sex couples, presumably because we’re too equal. The man who bombed an
While writing, I have kept on my desk a crumbling little book, about six inches high and one inch thick, titled Marriage: Its History, Character, and Results; Its Sanctities, and Its Profanities; Its Science and Its Facts. Demonstrating Its Influence, as a Civilized Institution, on the Happiness of the Individual and the Progress of the Race. Glancing every day at this thundering nineteenth-century tome, which reads now as so ridiculous, has kept me a little cautious – reminding me that any assertions I make about the meaning of marriage will also, surely, quickly become dated. I have tried, therefore, to keep my ranting to a minimum, concentrating instead on pointing readers to the historical surprises that have so often made me gasp.
***
Conclusion: pp.250-252
Today’s arguments about what constitutes a moral life-and a
moral marriage-are treated as if they
are unusually shocking, at least in what the
Yet marriage is a much hardier institution than either the doomsayers or the utopians ever seem to recognize. We can get a better perspective on today’s marriage debates by remembering that although each apparently revolutionary proposal to change the marriage rules has shocked the conservatives of any given era, when such proposals surface in public debate the underlying economic and social changes have already happened.
So which side should win today’s marriage battle, and why? The reader surely knows my opinion by now. But it might still help to reprise briefly what our era has concluded marriage is for-and how the intertwined rise of capitalism and egalitarian democracy transformed it. Marriage ceased to be a way to assign clan wealth or to choose your working partner-and turned into a way to share and shore up one’s dearest companion’s well-being and inner fortunes. Marriage stopped being justified only by making babies and became justified by enriching the couple’s happiness and intimacy. The family stopped being seen as your main work group, in which the child obeyed when her labor was assigned out-and started to be seen as a careful and nurturing nest for the vulnerable young, a nest in which men and women are equally qualified to serve as financial protector or personal nurturer or both. Making kin stopped being quite so critical to marriage, letting the pair themselves choose, free of family permission. Social order does remain one of marriage’s key purposes: the legal institution attempts to apply a just social consensus to private disputes.
Or to put it more simply, Western marriage today is a home for the heart: entering, furnishing. And exiting that home is your business alone. Today’s marriage-from whatever angle you look-is justified by the happiness of the pair. When combined with the West’s root commitment to officially treating the sexes as equal, that marriage philosophy makes it possible-no, necessary-to recognize the marriages of two people of one sex. Our society has endorsed what some of us think of as the most spiritual purpose of marriage, the refreshing of the individual spirit. And if we are to respect that spirit, same-sex couples belong.
Naturally, conservatives are dragging out the rhetoric that
has been hurled against every marriage change, as we’ve seen. Allowing same-sex
marriage would be like allowing married women to own property, “virtually
destroying the moral and social efficacy of the marriage institution.” Or it
would be like legalizing contraception, which “is not what the God of nature
and grace, in His Divine wisdom, ordained marriage to be: but the lustful
indulgence of man and woman. . . . Religion shudders at the wild orgy of
atheism and immorality the situation forebodes.” Or it would be like
recognizing marriage between the races, a concept so “revolting, disgraceful,
and almost bestial that it would lead directly to “the father living with his
daughter, the son with the mother, the brother with his sister, in lawful
wedlock”-and bring forth children who would be “sickly, effeminate, and ...
inferior.” Or it would be like making wives the legal equals of their husbands,
a proposal that “criticizes the Bible. . . degrading the holy bonds of matrimony
into a mere civil contract. . . striking at the root of those divinely ordained
principles upon which is built the superstructure of society… Or it would be
like allowing divorce, “tantamount to polygamy,” thereby throwing “the whole
community… into a general prostitution,” making us all “loathsome, abandoned
wretches, and the offspring of
Such warnings are usually based on the idea that changing a given rule changes the very definition of marriage. And of course, they’re right: define marriage as a lifetime commitment, and divorce flouts its very definition. Define marriage as a vehicle for legitimate procreation, and contraception violates that definition. Define marriage as a complete union of economic interests, and allowing women to own property divides the family into warring and immoral bits. Define marriage as a bond between one man and one woman, and same-sex marriage is absurd. But define marriage as a commitment to live up to the rigorous demands of love, to care for each other as best as you humanly can, then all these possibilities-divorce, contraception, feminism, marriage between two women or two men-are necessary to respect the human spirit.
***
Peculiarly, I sympathize with those anxious about what will happen when civil marriage opens to include Madeline and myself. Belief in love, belief in the integrity of the individual conscience, is profoundly unsettling. Putting same-sex couples into marriage law will endorse the changes in marriage that have been growing since 1800. It will insist yet again that each individual should-no, must-be free to choose his or her life course rather than following a path laid out by tradition. The fight over same-sex marriage is so rhetorically violent, so upsetting to so many, for the same reason as so many other debates in the past two hundred years have been: it insists that each of us matters. And that each of us must choose for ourselves how to live. Living in a pluralist nation is a fundamentalist’s nightmare, a reminder that a democratic society keeps its institutional doors open wide. Same-sex marriage will inscribe personal sexua1 and emotional choice firmly into our laws and social codes-but remember, it’s already here.
***
Note
The chief reason I’ve assigned this passage from Graff is to get us thinking and talking about the mutability of marriage and family – both our conceptions of those institutions, and then inevitably the laws that govern them. Graff is a provocateur to the extent she challenges and undermines any argument that we should stick with any particular marriage regime on the grounds that it’s “traditional” – that it’s “always been that way.”
In another sense, however, Graff is a romantic – a
passionate advocate for what she claims is the current view of marriage as “a
home for the heart.” We’ll have plenty
of opportunity throughout the course to ask whether the current legal regime
surrounding marriage and family manages – or is even designed – consistently to
support that philosophy. But I wanted
here at the beginning to challenge Graff’s romanticism – just as she challenges
the truisms of bygone eras. Enter Laura Kipnis.
From:
Laura Kipnis,
Against Love: A Polemic
Pantheon Books, 2003
Chapter one: love’s
labors, pp. 11-41
Will all you adulterers in the room please stand up? This means all you cheating wives, philandering husbands, and straying domestic partners, past, present, and future. Those who find themselves fantasizing a lot, please rise also. So may those who have ever played supporting roles in the adultery melodrama: “other man,” “other woman,” suspicious spouse or marital detective (“I called your office at three and they said you’d left!”), or least fun of all, the miserable cuckold or cuckoldess. Which, of course, you may be, without (at least, consciously) knowing that you are. Feel free to take a second to mull this over. Or to make a quick call: “Hi hon, just checking in!”
It will soon become clear to infidelity cognoscenti that we’re not talking about your one-night stands here: not about those transient out-of-town encounters, those half-remembered drunken fumblings, those remaining enclaves of suburban swinging-or any of the other casual opportunities for bodies to collide in relatively impersonal ways in postmodern America. We live in sexually interesting times, meaning a culture which manages to be simultaneously hypersexualized and to retain its Puritan underpinnings, in precisely equal proportions. Estimates of the percentage of those who have strayed at least once vary from 20 to 70 percent, meaning that you can basically select any statis tic you like to support whatever position you prefer to take on the prevalence of such acts. Whatever the precise number-and really, must we join the social scientists and pen-protector brigades and fetishize numbers?-apparently, taking an occasional walk on the wild side while still wholeheartedl)’ pledged to a monogamous relationship isn’t an earthshaking contradiction. Many of us manage to summon merciful self-explanations as required (“Shouldn’t drink on an empty stomach”) or have learned over the years to deploy the strategic exception (“ Out-of-town doesn’t count,” “Oral sex doesn’t count”) with hairsplitting acumen. Perhaps a few foresightful types have even made prior arrangements with the partner to cover such eventualities-the “one time rule,” the “must-confess-all rule” (though such arrangements are said to be more frequent these days among our nonheterosexual denominations). Once again, statistics on such matters are spotty.
But we’re not talking about “arrangements” with either self or spouse, or when it’s “just sex,” or no big thing. We will be talking about what feels like a big thing: the love affair. Affairs of the heart. Exchanges of intimacy, reawakened passion, confessions, idealization, and declarations along with favorite books, childhood stories, relationship complaints, and deepest selves, often requiring agonized consultation with close friends or professional listeners at outrageous hourly rates because one or both parties are married or committed to someone else, thus all this merging and ardor takes place in nervous hard-won secrecy and is turning your world upside down. In other words, we will be talking about contradictions, large, festering contradictions at the epicenter of love in our time. Infidelity will serve as our entry point to this teeming world of ambivalence and anxiety, and as our lens on the contemporary ethos of love-as much an imaginary space as an actual event. (Commitment’s dark other, after all-its dialectical pal.) Meaning whether or not you signed up for the gala cruise, we’re all in this boat one way or anorher-if only by virtue of vowing not to be.
***
Adulterers: you may now be seated. Will all those in Good Relationships please stand? Thank you, feel free to leave if this is not your story – you for whom long-term coupledom is a source of optimism and renewal, not emotional anesthesia. Though before anyone rushes for the exits, a point of clarification: a “good relationship” would probably include having-and wanting to have-sex with your spouse or spouse-equivalent on something more than a quarterly basis. (Maybe with some variation in choreography?) It would mean inhabiting an emotional realm in which monogamy isn’t giving something up (your “freedom,” in the vernacular) because such cost-benefit calculations just don’t compute. It would mean a domestic sphere in which faithfulness wasn’t preemptively secured through routine interrogations (“Who was that on the phone, dear?”), surveillance (“Do you think I didn’t notice how much time you spent talking to X at the reception?”), or impromptu search and seizure. A “happy” state of monogamy would be defined as a state you don’t have to work at maintaining. After all, doesn’t the demand for fidelity beyond the duration of desire feel like work-or work as currently configured for so many of us handmaidens to the global economy: alienated, routinized, deadening, and not something you would choose to do if you actually had a choice in the matter?
Yes, we all know that Good Marriages Take Work: we’ve been well tutored in the catechism of labor-intensive intimacy. Work, work, work: given all the heavy lifting required, what’s the difference between work and “”after work” again? Work/home, office/bedroom: are you ever not on the clock? Good relationships may take work, but unfortunately, when it comes to love trying is always trying too hard: work doesn’t work. Erotically speaking, plav is what works. Or as psychoanalyst Adam Phillips puts it: “In our erotic life … it is no more possible to work at a relationship than it is to will an erection or arrange to have a dream. In fact when you are working at it you know it has gone wrong, that something is already missing.”
Yet here we are, toiling away. Somehow-how exactly did this happen-the work ethic has managed to brownnose its way into all spheres of human existence. No more play-or playing around-even when off the clock. Of course, the work ethic long ago penetrated the leisure sphere; leisure, once a respite from labor, now takes quite a lot of work itself. (Think about it the next time you find yourself repetitively lifting heavy pieces of metal after work: in other words, “working out”) Being ; wedded to the work ethic is not exactly a new story; this strain runs deep in middle-class culture: think about it the next time you’re lying awake contemplating any of those 4 A.M. raison d’etre questions about your self-worth or social value. (“ What have I really accomplished?”)” But when did the rhetoric of the factory become the default language of love-and does this mean that collective bargaining should now replace marriage counseling when negotiating for improved domestic conditions?
When monogamy becomes labor, when desire is organized contractually, with accounts kept and fidelity extracted like labor from employees, with marriage a domestic factory policed by means of rigid shop-floor discipline designed to keep the wives and husbands and domestic partners of the world choke-chained to the status quo machinery-is this really what we mean by a “good relationship” ?
Back in the old days, social brooders like Freud liked to imagine that there was a certain basic lack of fit between our deepest instincts and society’s requirements of us, which might have left us all a little neurosis-prone, but at least guaranteed some occasional resistance to the more stifling demands of socialization. But in the old days, work itself occasionally provided motives for resistance: the struggle over wages and conditions of course, and even the length of the workday itself. Labor and capital may have eventually struck a temporary truce at the eight-hour day, but look around: it’s an advance crumbling as we speak. Givebacks are the name of the game, and not just on the job either: with the demands of labor-intensive intimacy and “working on your relationship,” now it’s double-shifting for everyone. Or should we just call it vertical integration: the same compulsory overtime and capricious directives, the dress codes and attitude assessments, those dreaded annual performance reviews-and don’t forget “achieving orgasm.”
Whining about working conditions won’t make you too popular with management though, so keep your complaints to yourself. Obviously the well-publicized desperation of single life-early death for men; statistical improbability of ever finding mates for women-is forever wielded against reform-minded discontented couple-members, much as the grimness of the USSR once was against anyone misguided enough to argue for systematic social reforms in a political argument (or rash enough to point out that the “choices” presented by the liberal democracies are something less than an actual choice}. “Hey, if you don’t like it here, just see how you like it over there. “ Obviously, couple economies too are governed-like our economic system itself-by scarcity, threat, and internalized prohibitions, held in place by those incessant assurances that there are “no viable alternatives.” (What an effective way of preventing anyone from thinking one up.) Let’s note in passing that the citizenship as-marriage analogy has been a recurring theme in liberal democratic political theory for the last couple of hundred years or so, from Rousseau on: these may feel like entirely personal questions, but perhaps they’re also not without a political dimension? (More on this to come.)
***
If adultery is the sit-down strike of the love-takes-work ethic, regard the assortment of company goons standing by to crush any dissent before it even happens. (Recall too the fate of labor actions past, as when the National Guard was ordered to fire on striking workers to convince them how great their jobs were, in case there were any doubts.) Needless to say, any social program based on something as bleak as working for love will also require an efficient enforcement wing to ply its dismal message. These days we call it “therapy.” Yes, we weary ambivalent huddled masses of discontent will frequently be found scraping for happier consciousness in the discreetly sound-proofed precincts of therapy, a newly arisen service industry owing its pricey existence to the cheery idea that ambivalence is a curable condition, that “growth” means adjustment to prevailing conditions, and that rebellion is neurotic-though thankfully, curable.
***
Another of the company goons: Culture. Consider the blaringly omnipresent propaganda beaming into our psyches on an hourly basis: the millions of images of lovestruck couples looming over us from movie screens, televisions, billboards, magazines, incessantly strong-arming us onboard the love train. Every available two-dimensional surface touts love. So deeply internalized is our obedience to this capricious despot that artists create passionate odes to its cruelty; audiences seem never to tire of the most repetitive and deeply unoriginal mass spectacles devoted to rehearsing the litany of its torments, forking over hard-earned dollars to gaze enraptured at the most blatantly propagandistic celebrations of its power, fixating all hopes on the narrowest glimmer of its fleeting satisfactions. But if pledging oneself to love is the human spirit triumphal, or human nature, or consummately “normal,” why does it require such vast PR expenditures? Why so much importuning of the population?
Could there be something about contemporary coupled life itself that requires all this hectoring, from the faux morality of the work ethic to the incantations of therapists and counselors to the inducements of the entertainment industries, just to keep a truculent citizenry immobilized within it? Absent the sell tactics, would the chickens soon fly the coop, at least once those initial surges of longing and desire wear off? (Or more accurately, flap off in even greater numbers than the current 50 percent or so that do?) As we know, “mature love,” that magical elixir, is supposed to kick in when desire flags, but could that be the problem right there? Mature love: it’s kind of like denture adhesive. Yes, it’s supposed to hold things in place; yes, it’s awkward for everyone when it doesn’t; but unfortunately there are some things that glue just won’t glue, no matter how much you apply.
Or here’s another way to tell the story of modern love. Let’s imagine that to achieve consensus and continuity, any society is required to produce the kinds of character structures and personality types it needs to achieve its objective-to perpetuate itself-molding a populace’s desires to suit particular social purposes. Those purposes would not be particularly transparent to the characters in question, to those who live our the consequent emotional forms as their truest and most deeply felt selves. (That would be us.)
Take the modern consumer. (Just a random example.) Clearly, routing desire into consumption would be necessary to sustain a consumer society-a citizenry who fucked in lieu of shopping would soon bring the entire economy grinding to a standstill. Or better still, take the modern depressive. What a boon to both the pharmaceutical and the social-harmony industries such a social type would be. These are merely hypotheticals, of course, since it’s not as if we live in a society of consumers and depressives, or as if the best therapy for the latter weren’t widely held to be strategically indulging in the activities of the former: “retail therapy” in urban parlance.
But perhaps there would be social benefits to cultivating a degree of emotional stagnation in the populace? Certain advantages to social personality types who gulped down disappointment like big daily doses of Valium, who were so threatened by the possibility of change that the anarchy of desire was forever tamed and a commitment to perfect social harmony effortlessly achieved? Advantages to a citizenry of busy utilitarians, toiling away, working harder, with all larger social questions (is this really as good as it gets?) pushed aside or shamed, since it’s not like you have anything to say about it anyway.
Some of our gloomier thinkers have argued that there is
indeed a functional fit between such social purposes and modes of inner life, a
line of thinking associated with the generation of social theorists known as
the Frankfurt School, who witnessed the rise of fascism in Germany first-hand
and started connecting the dots between authoritarian personality types, the family
forms that produced them, and the political outcomes. In fact, according to
renegade psychoanalyst Wilhelm Reich, a
Us, rebel? … No, rebellion won’t pose a problem for this social order. But just in case, any vestiges of freedom (or any tattered remnants still viable after childhood’s brute socialization) will need to be checked at the door before entering the pleasure palace of domestic coupledom. Should you desire entry, that is. And who among us does not-because who can be against love?
But just for fun, try this quick thought experiment. Imagine the most efficient kind of social control possible. It wouldn’t be a soldier on every corner-too expensive, too crass. Wouldn’t the most elegant means of producing acquiescence be to somehow transplant those social controls so seamlessly into the guise of individual needs that the difference between them dissolved? And here we have the distinguishing political feature of the liberal democracies: their efficiency at turning out character types who identify so completely with society’s agenda for them that they volunteer their very beings to the cause. But. . . how would such fear he accomplished? What mysterious force or mind-altering substance could compel an entire population into such total social integration without them even noticing it happening, or uttering the tiniest peep of protest?
What if it could be accomplished through love? If love, that fathomless, many-splendored thing, that most mutable yet least escapable of all human experiences, that which leads the soul forward toward wisdom and beauty, were also the special potion through which renunciation could, paradoxically, be achieved? …
Clearly love is subject to just as much regulation as any powerful pleasure-inducing substance. Whether or not we fancy that we love as we please, free as the birds and butterflies, an endless quantity of social instruction exists to tell us what it is, and what to do with it, and how, and when. And tell us, and tell us: the quantity of advice on the subject of how to love properly is almost as infinite as the sanctioned forms it takes are limited. Love’s proper denouement, matrimony, is also, of course, the social form regulated by the state, which refashions itself as benevolent pharmacist, doling out the addictive substance in licensed doses ….) Of course, no one is physically held down and forced to swallow vows, and not all those who love acquire the proper licenses to do so, but what a remarkable compliance rate is nevertheless achieved. Why bother to make marriage compulsory when informal compulsions work so well that even gays-once such paragons of unregulated sexuality, once so contemptuous of whitebread hetero lifestyles, are now demanding state regulation too? What about re-envisioning the form; rethinking the premises? What about just insisting that social resources and privileges not be allocated on the basis of marital status? No, let’s demand regulation! (Not that it’s particularly easy to re-envision anything when these intersections of love and acquiescence are the very backbone of the modern self, when every iota of selfworth and identity hinge on them, along with insurance benefits.)
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