Stories of cheaters, paramours, and the cheated-upon crowd the newspapers every day: Ben Affleck and Jennifer Garner, Todd Courser and Cindy Gamrat, Arnold Schwarzenegger and Maria Shriver, Bill and Hillary Clinton.
And then there’s Ashley Madison, whose database of 41 million members was recently hacked, in a category all by itself. This online pimp openly facilitates extramarital affairs and family suffering—for a fee. In 2014, the company grossed $115 million, with pre-tax profits of $55 million. “Life is short. Have an affair,” its homepage brazenly urges.
Clearly, I’m biased. Infidelity destroyed my family, and I’ve spent years putting my life back together. After the break-up of my marriage, I began writing about divorce in outlets such as The Huffington Post. Years later, people still write to me about their own heartaches, begging for advice and pleading for me to help change our divorce laws. I usually feel as helpless as they do.
But is what happens in the bedroom anybody else’s business?
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Media, Scandals, and Broken Promises
Extramarital affairs are nothing new. During my childhood, however, public reports of adultery were rare. Now, they’re everywhere. Our appetite for news of them seems insatiable. So as far as the media are concerned, the bedroom is our business. Big business. Perhaps such high-profile scandals make some feel better about their own indiscretions.
Have we become so inured to the onslaught that we neglect to stop reading long enough to pray for the spouses and families affected by so much suffering? How many use these cautionary tales to improve their own marriages or commit to ending their own affairs? Despite our “anything goes,” “let’s not judge” culture, I believe these stories resonate with a common truth held deeply at our core. Something feels wrong about breaking promises to loved ones.
When it comes to adultery, we don’t say that Jennifer, Hillary, or their children must have done something to justify being cheated on. For the most part, we’re still guided by the Golden Rule and the Ten Commandments, even though many of us are plainly reluctant to say so in public. We’ve witnessed how friends, acquaintances, and Facebook “friends” gang up on the slightest un-PC observation, while “cool” points are awarded to Dan Savage groupies.
It’s become more comfortable to be an anonymous coward. It’s inappropriate to get involved, we say. Infidelity is a private matter. Besides, government doesn’t belong in the bedroom.
This is simply not true.
Government Is Already in Our Bedrooms
It’s silly to maintain that government doesn’t belong in our bedrooms; government is already there in the thousands of laws that govern marriage, divorce, and families. This has never been more true than in the years since adoption of no-fault divorce. In divorce court, judges gain jurisdiction over every facet of a divorced family’s life for years—even decades at a time.
Estimates of the percentage of divorces in which infidelity is a factor range from 17 percent to 55 percent. Whether on the high or low end, that’s millions of marriages and unquantifiable heartache. Research has established beyond doubt the financial, emotional, and physical toll that divorce takes on men, women, and children. Each year, tens of billions of taxpayer dollars are spent on divorce fallout.
The health of all relationships—whether spiritual, familial, friendship- or business-based—depends on trust. When trust is compromised, the foundation of those relationships crumbles.
If our culture has truly abandoned belief in monogamy, why do wedding ceremonies today continue to contain reciprocal pledges of loyalty? Isn’t it because couples realize that choosing faithfulness to one another offers the best chance for marital longevity and family harmony?
Life is not about having our cake and eating it too. For the most part, that’s the lesson parents continue imparting to their children, at least verbally. Children know, however, that while cheating on a school exam is wrong, it’s certainly not as bad as one parent cheating on the other. Children recognize hypocrisy when they see it. As a result, many adult children of divorced parents have turned their backs on marriage, preferring cohabitation or single parenthood.
The Dangerous Injustice of No-Fault Divorce
Decades ago, our divorce laws protected betrayed spouses by allowing them to choose whether or not to end the marriage, and giving them the ability to receive compensation for breach of the marriage vow. Communities, extended families, and churches offered comfort and support for couples and broken-hearted spouses. Some marriages were healed. And the divorce rate was about half of what it is now. It was clear, too, which side our laws and media were on.
Divorce was considered the last resort, not the first one.
Was it judgmental to offer compassion to suffering spouses? Was it judgmental to hold those who harmed spouses and children accountable for the consequences of their actions?
Beginning in 1970, society turned its back on marriage and wisdom. One by one, all fifty states adopted no-fault divorce laws and reduced waiting periods for divorce and remarriage. Most states also repealed laws against adultery, and causes of action for alienation of affection that had permitted spouses to sue paramours for their participation in marital break-up. Cheaters were now armed to exit marriage for any reason, with impunity. Betrayed spouses were told to stop their bellyaching, start dating again, and move on with their lives. Divorce rates skyrocketed and family law attorneys made money hand over fist. Over time, marriage rates dropped.
But no contract is more important than marriage. So why don’t we treat it like one?
In contract law, unless a contract has been improperly formed, only the party claiming breach is entitled to sue. Once breach is proven, the law provides remedies for harm in order to achieve fairness. No-fault divorce turned the tables on this basic premise of contract law by allowing guilty parties to sue for divorce, even when their spouses had not breached the contract. Isn’t that discriminatory against spouses who have honored their marriage contract? Isn’t our no-fault system a clear case of favoritism and preferential treatment for spouses who breach their contractual promises? The equitable legal doctrine of unclean hands should extend to marriage contracts, barring adulterous spouses from suing innocent ones.
Several years ago, I co-founded the Coalition for Divorce Reform, a non-partisan organization working to educate the public about the harmful effects of divorce and advocate for passage of divorce reform legislation. Our model bill, the Parental Divorce Reduction Act, does not eliminate no-fault divorce, but our strategy of increasing waiting periods and educating parents is conducive to reconciliation of low-conflict marriages.
One goal of adopting no-fault divorce was allegedly to curb divorce court animosity. Obviously, that hasn’t worked; it’s hard to believe that custody and financial disputes could be any messier than they are now. Who cares if judges and lawyers don’t want to deal with claims regarding breach of marriage contracts? They should do their jobs or choose another line of work. Moreover, divorce reform won’t curb the freedom of cheaters. They’re still free to cheat; they just have to face the consequences and make reparation to the people they harm, as with any other contract.
Adultery, Pornography, and the Law
Adultery is still illegal in eighteen states, although such laws are rarely enforced. Why not? Why are public officials charged with enforcing the law shirking their duty and getting away with it?
Thus far, Ashley Madison has been hit with four lawsuits alleging damages of more than $500 million for various causes of actions relating to protection of customer data. Why aren’t prosecutors also suing Ashley Madison for criminal solicitation of adultery in those states where adultery is illegal? They should be confiscating the site’s profits and creating a public trust for those financially ruined by divorce. That’s not being judgmental—it’s sound business practice while enforcing the law.
What’s more serious: failing to provide adequate computer security or permitting Ashley Madison to help destroy families and impose the tax burden on Americans?
Research has also found that pornography can impair marital relationships, and lead to infidelity. It’s been cited as a factor in over 50 percent of divorces. So why aren’t public officials enforcing anti-pornography laws? Why are they getting off scot-free with not performing their jobs?
Some may try to justify these lapses in enforcement by arguing that Americans value free choice and oppose shaming others for their sexual behavior. If that’s true, why has Anna Duggar been so widely and vehemently shamed for choosing to attempt to repair her marriage? Our personal view about whether we’d stick around in a marriage with a cheating, pornography-addicted spouse is irrelevant; Josh Duggar isn’t our husband. It’s not our choice. Anna Duggar may turn out to be in for additional heartache if her husband can’t get his act together, but for now she’s decided to take the high road. Let her walk it.
Some couples may freely choose to enter “open” relationships. Such arrangements, especially when they involve marriage and children, are both morally and practically problematic, often causing great suffering. Still, as always, couples can and will make their own choices. Trouble arises when the only politically correct viewpoint is to endorse the views of adultery apologists like Dan Savage. Being forced to pretend that infidelity is harmless is an insult to me and the millions of other infidelity victims who continue to suffer under our discriminatory divorce laws.
And that is our business.