the Missouri Supreme Court i

Free love continues its progress, in an undramatic way, with the judicial invalidation of the Missouri “alienation of affection” law. The legal question is simple: if Miss A takes up with Mr. B, and Mr. B leaves Mrs. B for Miss A, has Miss A injured Mrs. C in a way that can be legally recognized? One would think so, especially in a world in which anyone can sue anyone for anything. After all, Mr. and Mrs. B are in a legally protected relationship that gives each important rights and duties, and Miss A has interfered in that relationship, induced Mr. B to violate it, and broken it up. Both interference with a contractual relationship and intentional infliction of acute emotional distress are actionable wrongs. So why not breaking up a marriage?

Nonetheless, the Missouri Supreme Court says “no.” The explanation they give is that alienation of affection is grounded in the “outdated idea that married people have property interests in each other” — that is, that married people have rights with respect to the continuation of the marriage. That notion, the court says, is out of date. But why, one might ask? The apparent implication is that for people today marriage is a matter of shifting private sentiment and not an enduring institution that demands respect (although legal recognition may be given to matters such as the parties’ obligations as individuals to support their children). What this case means, it appears, is that in mid-America adultery is no longer a socially-condemned wrong but something — an exercise of free expression, perhaps — that deserves judicial protection. If there are old-fashioned laws that penalize it, the laws must be invalidated. Isn’t it obvious what a revolution has taken place? “Most lawyers would have predicted this,” a local legal commentator, said of the decision. “It really brings a Missouri into the 21st century.” I think he’s right.

American society, and Western society generally, is abolishing marriage. If marriage is a nonbinding arrangement between any two persons for the purpose of receiving certain social benefits, and adultery is a protected right, then marriage doesn’t exist. What should one do in such a society? How conceive one’s relation to it?
Posted by Jim Kalb at June 20, 2003 09:54 AM | Send