Whatever else they may prove, these statistics make one fact abundantly clear: For a sizable section of our society, "trial marriage" is not just an interesting social theory—it is a way of life. If a person becomes dissatisfied with his or her choice of mate, one can always obtain a divorce and try again. We may pretend to live in a monogamous society, but a great many of us are practicing what has been called sequential polygamy.
The polygamous nature of our society—all pretense to the contrary—prompts a side observation on marriage and religious freedom, unrelated to the problem of divorce: The Mormon Church historically countenances polygyny, in which one husband is permitted to take several wives—all of whom dwell in a single household, with their assorted offspring. Despite the question of religious freedom clearly involved, the government prosecutes as bigamists any followers of the faith who take their religion seriously in this regard; the Biblical injunction to "be fruitful and multiply" has U.S. government approval only so long as it is done with one spouse at a time.
Though the majority of us undoubtedly prefer our mates in sequence—and, indeed, most husbands find the problems presented by a single wife quite sufficient—it is difficult to see how the welfare of society is served, when a man wished to take a new mate, by forcing him to desert his original family.
Returning to the problem of divorce, it seems doubtful that stricter laws would help matters any—they would simply intensify courtroom subterfuge and render the courts even less effective in dealing with the actual causes of marital mishap.
Divorce should also be recognized as a symptom of social disease, rather than the disease itself; attempts at cure should logically be directed more at the disease—marital unhappiness—than at the symptoms, especially since the request for a divorce represents one of the last stages of an unstable marriage, when the chances of cure are appreciably less than they might previously have been.
It should also be recognized that the substantial increase in the divorce rate over the last half century does not necessarily represent a comparable increase in marital disharmony. It is reasonable to assume that the greater number of divorces is more the result of a lessening of society's taboos in that area and our increased emphasis on the importance of individual happiness in present-day society; unhappy marriages were probably just as common in 1900 as they are today, but contemporary men and women are more inclined to do something to solve their unhappiness.
If society is sincerely interested in happy, successful marriages as being in the best interests if the public welfare, what is needed is stricter marriage laws, not stricter laws on divorce. We will expand, in a later issue, on our belief that too easy and too early marriages are the primary causes of marital unhappiness and failure. But we should recognize here the extent to which society and the estate produce early and subsequently unhappy marriages.
By making marriage a church-state license to enjoy the pleasures of sex—by making sex outside of marriage a social and legal taboo—our society supplies a tremendous impetus to early marriage, whether couples are emotionally, psychologically and economically prepared for it or not.
Laws limiting the marriage of children, and the mentally and emotionally incompetent are too lax. Indeed, if an underage couple eloped and the union has been sexually "consummated," our irrational religious heritage lends strong argument to allowing the marriage to stand, whether or not the couple is mature enough to comprehend and undertake the responsibilities inherent in marriage and the raising of a family.
So-called "shotgun" marriages may even force one member in a relationship into marriage against the person's better judgment, because there has been sexual intimacy or, more often today, because that intimacy has resulted in pregnancy. If a literal "shotgun" attitude still persists and society seems more anxious to force the unprepared into wedlock than to properly educate the young in how to avoid unwanted pregnancy or solve, in any rational and humane manner, the problem of undesirable pregnancy (through legal abortion) when it does occur.
If an engagement prior to marriage is seen as a period during which a man and woman are allowed a time of close acquaintanceship that they may better judge if each is best suited to the other, then the entire legal history of breach-of-promise suits is irrational—wherein a person (almost always the male), once having proposed marriage, is penalized (and sometimes heavily) for changing his mind.
The observation has been made that in breach-of-promise actions the average jury, historically generous with other people's money, utilizes two prime considerations in the computation of damages: (1) the plaintiff's beauty; and (2) the ability of the defendant to pay. As a result, verdicts have been generous and appellate courts have sustained damages ranging from $500 to $45,000 against charges that they were excessive. In one New York case, the plaintiff had admitted that she did not love the defendant. She was 29 years of age and the defendant was 84 and partially palsied. However, his fortune was estimated at $15 million. The offer to marry the plaintiff was made only a few days before the breach-of-promise action was taken. Nevertheless the jury awarded the plaintiff $225,000, which the appellate court reduced to $125,000. In a Michigan case, the jury awarded a woman the sum of $450,000, which was reduced to $150,000 by the court.
Ploscowe comments, "These verdicts, however, present only a partial picture of the social consequences of the breach-of-promise action. Large numbers of breach-of-promise actions are settled outside of court because of the consequences which might flow from publicity which this type of action entails. No man of prominence or social position can afford to have his love life aired in the way that the tabloid press has made familiar. As a result, the adventuress and the gold digger are presented with an unparalleled opportunity for shakedown and blackmail."
Our legislatures and courts have finally come to recognize the undesirable nature of breach-of-promise suits and approximately 17 states, including New York, have now outlawed such actions. Breach-of-promise suits should obviously be abolished in all states.
No human act between two people is more intimate, more private, more personal than sex, and one would assume that a democratic society that prided itself on freedom of the individual, whose Declaration of Independence proclaimed the right of every citizen to life, liberty and the pursuit of happiness, and whose Constitution guaranteed the separation of church and state, would be deeply concerned with any attempted infringement of liberty in this most private act.
But our society still carries the searing brand of antisexualism inherited from the medieval Church of Europe and the Puritanism of England and so, while America has been traditionally permissive in most areas of human behavior, we have been restrictive in matters of sex.
We have prized virginity and chastity, especially in women, and proclaimed that sex outside of the married state is wrong. We have reinforced this religious viewpoint at every level of secular society and the state has further established this restriction by legislative edict: non-marital and extramarital sexual intercourse between adults is prohibited under statutes covering fornication, adultery and lewd cohabitation in 48 of the 50 states and the District of Columbia (excluding only California and Tennessee), as well as the Federal Mann Act where interstate activity is involved.
This behavior, publicly condemned throughout most of our society, and forbidden by both state and federal law, is privately practiced—not by a select minority—but by a considerable majority of our adult population. Nonmarital coitus (fornication) is engaged in by approximately 90 percent of adult males, according to Dr. Alfred C. Kinsey and his research associates at Indiana University (Wardell . Pomeroy, Clyde E. Martin, Paul H. Gebhard), in their monumental study of U.S. sex behavior, published in two volumes, Sexual Behavior in the Human Male and Sexual Behavior in the Human Female.
Dr. Kinsey and his associates found that sexual activity varies greatly, in both form and incidence, depending upon educational and social backgrounds. Among males who go to college, some 67 percent have sexual intercourse prior to marriage; among those who receive some high-school education, but do not go further, approximately 84 percent have premarital intercourse; and among males who do not go beyond a grade school education, the accumulative incidence figure is 98 percent. Kinsey reports that in some groups among the lower social levels, it is virtually impossible to find a single male who has not had sexual intercourse by the time he reaches his mid-teens. In addition, nearly all men (about 95 percent) who have been initiated into regular coital experience in marriage, continue to engage in sexual intercourse after their marriages have been terminated by the spouse's death, by separation or divorce. They "repudiate the doctrine that intercourse should be restricted to marital relations. Nearly all ignore the legal limitation on intercourse outside of marriage. Only age finally reduces the coital activities of those individuals, and thus demonstrates that biological factors are, in the long run, more effective than man-made regulations in determining the patterns of human behavior."