Essay by Linda J. Lacey
Unpack your bags and try not to cry
I can't leave my wife
There's three reasons why
There's Jimmy and Kathy
And sweet Lorelei
For the sake of the children, we must say good-bye.
In the aftermath of the no-fault divorce revolution, an increasing number of commentators, as well as many members of the general public, have deplored the negative effects of divorce on children. In the last few years, these general concerns have been translated into specific proposals that arguably would reduce the number of divorces for people with children. The most dramatic of these proposals is Christopher Lasch's call for a constitutional amendment that would completely prohibit parents with children under twenty-one from obtaining a divorce. Elizabeth Scott's article, Rational Decisionmaking About Marriage and Divorce, is one of the latest and perhaps most significant contributions to this genre. Because Scott's position draws heavily upon psychological studies, social science data, and economic analysis, it appears to be a moderate and reasonable alternative to extremist positions such as those espoused by Lasch. Therefore, it may be taken very seriously. As a feminist, I find the prospect appalling.
Scott's article begins with a theme familiar in feminist and leftist literature—a criticism of the evils of unfettered individualism. She links the contemporary society's emphasis on autonomy and self-gratification with the high rate of divorce and notes that “several legal scholars have suggested that the rhetoric of family law should emphasize relationship and responsibility and speak less in the language of individual rights.” This is a proposition many feminists would enthusiastically support. Yet, despite one brief nod to feminist jurisprudence, Scott's entire article is written in a “gender-blind” framework. Scott has completely failed to consider the disproportionate and negative effects that her proposals could have on many women, particularly economically disadvantaged women. While there are aspects of her proposals that have some merit, if they are adopted in their current form, they will reinforce many of the worst aspects of our patriarchal system. It is always problematic for an article that proposes sweeping reform in the law, as Scott's does, to ignore issues of gender, race, and class. This oversight is particularly troubling when the article deals with an area of the law that affects the most intimate and important areas of people's lives. Although my emphasis in this Essay will be on the effects of Scott's proposals on women, I will also argue that her proposals would eventually injure the very people that they were designed to help-children. After a divorce, the mother becomes the custodial parent in more than ninety percent of the cases. Since the mother's interests are inevitably intertwined with those of her children, any analysis that focuses only on children and ignores their caretakers is intrinsically flawed.
About the Author
Linda J. Lacey. Professor of Law, University of Tulsa, College of Law; J.D., University of California, Los Angeles, 1978; B.S., University of Wisconsin at Madison, 1967.
Citation
66 Tul. L. Rev. 1435 (1992)